Preparing for the witness box

As litigation against the healthcare sector increases, the need for guidance on how to excel in the witness box and to preparing professional, well-crafted statements has never been more important. All too often, the first time a healthcare professional will give this serious consideration is when they are faced with a court case, yet training and preparation – long before an event even occurs – could make all the difference to the outcome. “Legal Issues for Healthcare Professionals”, a workshop by the 3M AfPP Academy, provided perioperative practitioners with the skills to enhance their performance as witnesses and helped to improve their knowledge of the legal process. The workshop covered a diverse range of areas – from advice on managing complaints and legal proceedings, to witness statement production and preparing for interview.

Preparing a witness statement

Course trainer Kate Hill, a medical law and ethics specialist with a background in clinical negligence, has been involved in a number of high profile cases acting for the NHS. She explained that it is advisable for healthcare professionals to practise writing witness statements on an ongoing basis. Getting in the habit of exchanging constructive criticism with colleagues on “dummy statements”, long before an event ever occurs, ensures you are fully prepared and skilled at preparing such documents. Delegates were asked to write an account of their journey to the training centre to demonstrate just how difficult this is in actual practice. The statements were subjected to mock interrogation by the course tutor, which highlighted gaps in information, confused accounts of the order of events and inconsistencies. She also highlighted mistakes in punctuation and spelling. “Lawyers will make you look stupid if your grammar and punctuation is poor – they will use any tool to put you in a bad light,” she commented. Delegates were asked to pair off and review each other’s “statements” to gain experience of giving criticism. Such rehearsals are intended to help healthcare professionals to apply this critical process to their own statements in the future. They were asked to look for incomplete tasking and “opinion” words that could not be substantiated. In addition, they were advised that “pseudo” legal language, such as: “as I was proceeding in a northerly direction”, should be avoided. Kate Hill pointed out that far too many witnesses adopt pseudo legal jargon in their written statement which lawyers will deride. Abbreviations, such as “BP” for blood pressure, can also cause confusion and many have different interpretations. “Your audience is the judge, who may not understand terminology such as ‘bank nurse’ or ‘perioperative practitioner’,” Kate Hill commented. She pointed out that explaining events to the lay person can be challenging: “A statement that a rib was broken ‘during resuscitation’ may cause confusion, as many people associate the term ‘resuscitation’ with the airway, for example. You have to make the judge understand your world.” The course tutor pointed out that a healthcare professional should never prepare a witness statement without sight of the medical records and it should be prepared as soon after the event as possible, since contemporaneous documents are more credible. However, you should never rush the exercise nor allow yourself to be forced (by lawyers for example) to work more quickly than you would like. If proceedings have been issued, you should also have sight of the statement of claim. If you are asked to provide a statement before proceedings have been issued, but after the patient has instructed solicitors, you should see the letter before action. An unfavourable witness statement does not have to be disclosed to the other side as long as it was prepared in contemplation of litigation. However, a statement prepared as a part of a serious incident investigation does not fall within this category and is disclosable.1 If a serious incident becomes a High Court case you may find yourself having to explain your preliminary comments in the witness box. Kate Hill outlined the following fundamental considerations, when preparing a witness statement:
Format and technical requirements • Write on one side of the paper only. • Type the statement and bind it using one staple in the top left hand corner. • Have a decent left and right margin and double space the document. • Use a heading to orientate the reader e.g. Statement of Bob Smith following the death of Augustus Clark on EWard at Pilkington Hospital on 22 November 2006. • Number the pages and identify the statement in the top right hand corner of each page e.g. Page 2 Witness Statement of Bob SMITH. • Number paragraphs and appendices. • Refer to documents and names in capitals and express numbers as figures. • Attach copies of protocols or other documents referred to e.g. staff rota or observation policy. • Use narrative form and chronological order. • Sign and date it. • End with a statement of truth: “I believe that the contents of this statement are true”. • Spell check the statement.
Content • Before starting, ask yourself: “What are the issues?” This will help you to stay relevant – sidetracking can be dangerous. • Would a chronology be helpful? • In the first paragraph set out who you are, your occupation and where you work (currently and at the time of the incident). It is important to orientate the reader so provide a short CV. In more complex cases you might also append a fuller CV. • Use headings, for example: Monday, Tuesday, Wednesday etc. • Use short sentences and paragraphs and make sure the document is accessible to a non-clinician. • Each paragraph of your statement should deal with a distinct portion of the evidence. • Do not stray into other witness’s evidence. • Make sure that you state fact and not opinion e.g. avoid statements like: “I thought for years this was going to happen”. If you are stating professional opinion e.g. a diagnosis, explain the thinking behind your opinion. • Do not use jargon. If you have to use technical terms consider the use of a glossary and/or diagrams. • Identify individuals as they are introduced to the story. It is important to note that, when preparing for court, you should not get a colleague to review your witness statement, instead you should critique the document yourself. You should consider how you would cross-examine on the statement if you were a barrister rather than a witness.