Max Konarek, partner and joint head of the family & childcare department, GT Stewart Solicitors.
The introduction of the Suspected Inflicted Head Injury Service (SIHIS) has generated significant concern for those involved in public law care proceedings. Currently, there are three pilots already up and running across hospitals in Manchester, Sheffield, and Birmingham.
Despite its ostensible objectives, senior family law practitioners (myself included), have voiced grave concerns about its implementation and potential implications on the rights of those being engaged in the SIHIS.
The premise of SIHIS
The SIHIS was established by the Family Justice Council with funding from the Department for Education (DfE). The SIHIS, we are told, aims to streamline and enhance the assessment process for children with suspected inflicted head injuries feeding into the court process, reducing delay and costs.
Its primary goal is to address family court delays by providing comprehensive, uniform reports compiled by a multidisciplinary team of expert clinicians. These reports are intended to be utilised in cases involving suspected non-accidental head injuries (NAHI) in children aged 0 to 8 years.
Concerns from the legal community
There are numerous concerns raised but some of the key issues centre around:
- Impact on the Article 6 (right to a fair trial) and Article 8 (right to respect for private and family life) rights of the individuals involved in these proceedings: Members of the legal community have been vocal in recent weeks about several key issues regarding the SIHIS. A primary concern is a move away from the traditional process that allows for the appointment of independent medical experts by legal representatives, who are chosen for their specific expertise and experience as medico-legal experts.
- Contradictory & limited information provided: The DfE has thus far only produced a three page summary document of information which was circulated weeks after the pilots were implements. The DfE claims that these reports will not replace existing court reports but will augment the information available to judges. However, there is an inherent contradiction in this assertion within the DfE’s own information where it also suggests that SIHIS reports will reduce the need for additional court-instructed expert assessments; which raises concerns about the diminishing role of independently instructed medical experts.
- Quality and completeness of information: SIHIS clinicians, involved early in the process, may not have access to the full scope of case documentation or detailed statements from the accused, which are typically developed with significant input from legal representatives. This comprehensive preparation is crucial for a fair assessment and robust defence.
- Cross-examination of experts: The ability to cross-examine medical experts is a cornerstone of ensuring fair outcomes in NAHI (and all) public law care proceedings cases. I have seen first-hand that successful outcomes often hinge on the skilled cross-examination of experts. The introduction of SIHIS raises concerns about whether these experts will be subject to the same level of scrutiny and how their evidence will be integrated into the court proceedings.
Lack of transparency and consultation
Another major issue is the perceived lack of transparency and consultation during the rollout of SIHIS. The initiative appears to have been implemented without significant (or in some cases, any!) input from key stakeholders in the legal community, including professional bodies such as the Law Society, the Family Law Bar Association, Resolution and the Association of Lawyers for Children.
There has also been no consultation with representative bodies for medical clinicians and expert witnesses – for example the British Society of Neuroradiologist, the Royal College of Radiologists, Royal College of Paediatrics and Child Health, the Academy of Experts and the Expert Witness Institute. This absence of dialogue has fuelled concerns about the adequacy and appropriateness of the SIHIS framework.
Moreover, details regarding the selection of expert clinicians, the criteria for their appointment, and the metrics for evaluating the pilot’s success remain unclear. This opacity further exacerbates fears about the potential erosion of due process and the integrity of care proceedings.
Recent developments
This week has seen two key meetings take place – the FJC open council meeting took place on 22/7/24 and a DfE meeting about the SIHIS took place on 25/7/24. It had been expected that the latter would be an opportunity to answer questions from practitioners, however what transpired was a limited Q&A session at the end of a meeting, where barely any of questions asked were answered; those that were lacked any real substance or assurances.
A new key message from those running the pilot seems to be emerging in that the SIHIS is a pilot of the clinical arrangements within the health service. It is not a legal pilot and therefore the court process will not change and Part 25 experts will not be replaced. The physical process may not change; the issue that has not been addressed is what reliance will the court place upon the SIHIS report in considering the necessity of an expert instruction – the answer to that I fear is more than they are letting on.
Moving forward
From a medical standpoint the SIHIS is commendable and may prove hugely beneficial to the NHS, reducing error and creating a gold standard of care for the patients involved. From a legal point of view I struggle to see how the SIHIS is not a legal pilot to; if that really were the case why is the FJC involved and why does the DfE published information link back to the court process throughout the document published?
The introduction of SIHIS, while apparently well-intentioned, has unveiled a host of concerns that need to be urgently addressed. The legal community is calling for greater transparency, comprehensive consultation, and reassurances that the fundamental rights of those involved in care proceedings will be protected.
While the aim to expedite and enhance the assessment process in NAHI cases is commendable, it is imperative that any new system upholds the rigorous standards of justice and the rights of all parties involved. The dialogue between the legal and medical communities must start to ensure that SIHIS can be refined to serve its intended purpose without undermining the integrity of care proceedings and impacting on the families’ lives of those that will be impacted by it.
Image: Provided by GT Stewart Solicitors.
Guest Post
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