Amicus Curiae: Are Forensic Pathologists Pathologically Overworked?

Content Contributor,  Jade Du Preez

A recent report on the availability of forensic pathologists has once again highlighted the difficulties posed by a shortage of experts in the area. Last month Radio New Zealand National released statements from those working in the field, who raised concerns about risking miscarriages of justice in situations where there was an “inequality of arms” between defence and prosecution teams.

The Role of a Forensic Pathologist

In the event of a death in complex or suspicious circumstances, a forensic pathologist will be engaged to carry out a post mortem report to aid the coroner in understanding how death occurred. Once the medical examination has been carried out, a provisional report is supplied, generally the following day, with the full report taking several months to be completed. Report information can then be reviewed by a separate pathologist. The standard option does not involve the body of the deceased being viewed by a separate pathologist.

In New Zealand the status quo has been described as the Crown getting “first dibs” on medical experts, with the defence having access to whoever is leftover and available. Due to a lack of available experts, it can often be the case that there is difficulty in finding a separate party to review the report, and timing can be critical.

The Auckland DHB report of 2014 provided the following statistics for the National Forensic Pathology Service:

• In 2014 Auckland DHB employed eight full-time forensic pathologists.
• There are approximately 3000 postmortems conducted in a year
• 170 – 190 postmortems are associated with homicides or suspicious death.
• There were no particular concerns relating to the quality of service in the area.

The Radio New Zealand report from April of this year, in which veteran pathologist Dr Martin Sage warned of a crisis in the service, provided data demonstrating that there was the equivalent of 6.5 full time forensic pathologists available to service the country, one of whom was retiring by June.

The need for a second opinion

Criminal Bar Association president Noel Sainsbury suggested that there was little appreciation for the genuine need to have multiple perspectives on evidence. Reference was made to “TV-fueled faith” in the precision with which scientific methods can determine guilt or innocence. The reality is far more complex. It is generally common for different expert witnesses to give contrasting testimony. This view was also expressed by pathologist Dr Simon Stables who advised “to not watch TV. It's completely wrong and it causes us some problems when people have this expectation that everything is like it is on TV." This “CSI effect” is of concern when found in juries who have a tendency to place considerable weight on forensic evidence. When separate experts cannot be provided for both sides, there is an increased risk of bias.

Further, where there are delays in access to expert evidence it can also affect the plea a lawyer will recommend to his or her client. This can occur, for example, in a situation where detail will indicate whether murder or manslaughter is applicable to the circumstances. These resourcing issues also impact grieving families when time is stretched out waiting for the resolution from the court.

Under Pressure

Dr Martin Sage said within the next few months it would likely be the case that pathologists would be overwhelmed to the point that some autopsies would not occur, and inquests (judicial inquiries) would be deferred. He further warned that over-worked professionals carrying out 50-60 hour weeks were likely to suffer both personally and professionally with the increased risk of mistakes occurring. Sage indicated that the contract between his colleagues and the DHB prevented them from speaking out.

The Ministry of Justice did not share these concerns, stating that the current system was “stable, sustainable and working well.”

It remains to be seen whether the prediction of troubled times to come holds true.

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