Guidelines in forensic odontology: legal aspects

Guidelines in forensic odontology: legal aspects

Forensic Science International 159S (2006) S6–S8 www.elsevier.com/locate/forsciint Short communication Guidelines in forensic odontology: legal aspe...

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Forensic Science International 159S (2006) S6–S8 www.elsevier.com/locate/forsciint

Short communication

Guidelines in forensic odontology: legal aspects Y. Vermylen * Department of Forensic Odontology, School of Dentistry, Oral Pathology and Maxillo-Facial Surgery, Katholieke Universiteit Leuven, Kapucijnenvoer 7, 3000 Leuven, Belgium Available online 23 March 2006

Abstract The task of the forensic dentist is ruled by an obligation to be diligent and prudent. If guidelines should exist which are recognised by the dental forensic community, they will probably be used to judge his work, even if guidelines are only considered as recommendations. The questions to be answered are: who issued these guidelines and are they conform to evidence-based forensic odontology. # 2006 Elsevier Ireland Ltd. All rights reserved. Keywords: Dental jurisprudence; Forensic odontology; Guidelines

1. Introduction Guidelines in forensic dental practice can be defined as ‘‘systematically developed statements and protocols to assist forensic odontologists in arriving at decisions in forensic dental work’’. Guidelines are rules, made by the profession, based on experience and evidence-based processes, that preferably have to be followed by forensic odontologists in order to arrive at a solid decision in a forensic case. Guidelines should be based on systematic reviews of the literature: that means that scientific evidence must be searched for and evaluated in a rigorous and structured way. Which procedures are beneficial, which are ineffective or even harmful? What is mandatory and what is recommended? A guideline must guide a practitioner through the procedure that he has to perform and should be considered as a recommendation. It is obvious that guidelines will be very helpful for the dental expert — it is a reminder of the different steps of the procedure that have to be followed as close as possible. If guidelines are to rigid it may not leave any possibility to deviate from them and each deviation from the beaten track may be considered as a possible fault. The legal implications of the development of guidelines are two-fold. First, what is the liability of those individuals and organizations that draft guidelines? If the methodology is not

* Tel.: +32 15 513808; fax: +32 15 513808. E-mail address: [email protected]. 0379-0738/$ – see front matter # 2006 Elsevier Ireland Ltd. All rights reserved. doi:10.1016/j.forsciint.2006.02.002

rigorous and transparent, the resulting guidelines may be biased. They must reflect the common opinion of the dental expert and not the opinion of just one forensic expert. Guidelines must be evaluated again at specific time intervals in order to make them up to date with new acquirements of forensic dental science. Second, what is the liability of forensic odontologists? We may have a look at what has been said about the legal aspects of clinical practice guidelines (CPG) in dentistry [1]. Jutras clearly states that guidelines in medicine will not be considered as the legal standard of care by the courts unless they are widely accepted as reasonable and expected care by a substantial portion of the health care community [2]. Even then, he says, guidelines would rarely be decisive, but would simply be considered as one opinion. Similarly, health policy lawyer Caulfield [3] has stated: ‘‘no matter how well they are developed, CPGs will remain only evidence – evidence that can be refuted – and not a codification of the standard of care’’. The guidelines made by IOFOS can be used as an example. They are drafted by the Norwegian society of forensic odontology and they have been discussed internationally (Hafjell meeting, Norway 2004) [4]. Since IOFOS is the international recognised institution of forensic odontology, one may expect that these recommendations are valid and have to be used by all forensic societies that are members of the organisation. As is known, these IOFOS recommendations on good forensic dental practice are not yet officially validated and accepted by all member societies. As soon as these

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guidelines will be widely accepted, they have to be respected and will be the leading rules in forensic dental science. It is not clear that member societies may have a dissenting opinion about some protocols or that these recommendations will be adopted by a majority of votes. Even if a guideline will not have the status of a legal rule it will have a very significant influence in the forensic work done by the dental experts. We may expect that the work of a dental expert will be evaluated according to these recommendations and each expert who deviates from them has to proof why he did it. Forensic dental work can be classified as a job ruled by an obligation to be diligent and prudent and not as an obligation to obtain a specified result (at least not for all tasks). The work of a dental expert will be compared with the work of a ‘‘prudent, competent forensic odontologist, working under the same circumstances and at the same time’’. In that discussion the guidelines may play an important role to evaluate the work done by the expert. The guidelines which are actually on the website of IOFOS are still the guidelines drafted by the Norwegian society of forensic odontology. It is not clear if these guidelines are recommended or required and they do not include the work and remarks of the working groups at the meeting in Hafjell, Norway. We have seen in the past that it is difficult to obtain an international agreement in forensic science. The best example is the Interpol form to be used in mass disasters [5]. Even today the form is not accepted all over the world, but we see that a lot of progress has been made and that the time has come that it will become the international standard. Even then it will be necessary to evaluate the form and improve it in the future. That form will be the guideline to be followed in cases of mass disasters and we have to recognise that a deviation from its procedures will not be tolerated unless there are very good reasons to do so. The guidelines as made by the Norwegian forensic odontology society are valuable and the starting point of a discussion between member societies, but more work has to be done before they can obtain the status of the Interpol form. Only evidence-based, non-biased research of the literature, accepted by a substantial part of the profession can be included in international guidelines. We may say that the work done by the forensic dental expert is an obligation to be diligent and prudent and it is obvious that a dental expert can be held liable [6]. An ‘‘expert’’ can be defined as one who has acquired special knowledge of the subject matter about which he has to testify, either by study, education or practical experience, and who can assist and guide the jury and the judge in solving a problem which would otherwise remain unsolved because of the inadequate knowledge of jury and judge. A witness, who by education and/or experience has become an expert in any art, science, profession or calling may be permitted to state his opinion as to the matter in which he is versed and which is material to the case, and he may also state his reasons. On a public policy level, it is likely that the justifications adduced in support of witnesses’ immunity from negligence

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suits would not avail in a case where deliberate dishonesty was perpetrated by an expert in the form of a report tendered to the court or in the form of oral testimony. The likely approach of modern courts is unreceptiveness to the contention that expert witnesses, purely because of their formal status, should be exempted from criminal liability should there be evidence that they have deliberately attempted to mislead the courts by offering false information or views that they do not hold. But proceedings for perjury will be extremely infrequent because of the enormous difficulties of proof to the criminal standard. The fact that the expert is cross-examined (at least in common law countries) is another guarantee that false expert’s opinions will not be able to decide a case. And, furthermore, each expert knows that his reliability and professional honor or even career is at stake. However, something of a shift from the generous judicial attitude of the past can be perceived in Palmer versus Dunford Ford, 1992 where judge Tuckey QC said: ‘‘the immunity extended to them for protection from negligence action was based on public policy grounds and so should only be conferred where it is absolutely necessary to do so. Generally I do not think that liability for failure to give careful advice to his client should inhibit an expert from giving truthful and fair evidence in court. . . I can see no good reason why an expert should not be liable for the advice he gives to his client as to the merits of the claim, particularly if proceedings have not yet been started, and a fortiori, as to whether he is qualified to advise at all. Thus, the immunity would only extend to what could fairly be said to be preliminary to his giving evidence in court judged perhaps by the principal purpose for which the work was done. So the production or approval of a report for the purposes of disclosure to the other side would be immune but work done for the principal purpose of advising the client would not.’’ 2. Conclusions If the work of a dental expert has to be judged, one has to compare his work according to the standard of the ‘‘prudent and diligent forensic dental expert’’. And that will be the moment that guidelines, if they exist, may play an important role. The questions to be answered are: who issued these guidelines and are they conform to evidence-based forensic odontology. Some guidelines will have a greater impact than others; some may have the status of mandatory rules while others are merely recommendations. Only common sense and a review of the literature are able to disclose these distinctions. We have to admit that there are different ways and methods that may lead to the same conclusions and every dental expert should have the possibility to decide how he will organize his work as long as the outcome of his work is scientifically correct. References [1] S. Sutherland, D. Matthews, P. Fendrich, Clinical practice guidelines in dentistry. Part I. Navigating new waters, Prim. Dent. Care 11 (2004) 22–24.

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[2] D. Jutras, Clinical practice guidelines as legal norms, Can. Med. Assoc. J. 148 (1993) 905–908. [3] T. Caulfield, What impact do GPCs have on the practical environment and on care? A legal perspective, in: S. Usher (Ed.), Scripting a future for Clinical Practice Guidelines, Health Policy Form, Toronto, Canada, 1999.

[4] http://www.odont.uio.no/foreninger/iofos/recommended_procedures.htm. [5] http://www.interpol.int/public/disastervictim/default.Asp. [6] Y. Vermylen, The liability of the forensic odontologist, in: G. Willems (Ed.), Proceedings of the European IOFOS Millennium Meeting on Forensic Odontology, Leuven University Press, Leuven, 2000, pp. 39–45.