Lottie Jones looks at the issues faced by defendants when factual witnesses cannot be located or are reluctant to be involved in litigation and how to overcome this.

It is unfortunately accepted by most medical practitioners today that they are likely to be involved in a complaint or legal claim at some point in their careers, whether directly or indirectly. However, the simple mention of litigation is likely to make most clinicians anxious, especially when faced with the prospect of giving evidence in court.

In a recent case handled by Hill Dickinson, a number of factual witnesses could not be located, refused to be involved or were reluctant (at times) to give evidence in the lead up to trial. They were particularly concerned as they had previously given evidence at the inquest in connection with the patient’s death and the circumstances of the case were difficult and emotive for all involved.

The facts

Briefly, the claim related to the death of a patient who suffered from paranoid schizophrenia. He had been detained under the Mental Health Act, but was subsequently discharged from hospital and was cared for in the community. However, he sadly died three weeks later after he fell from a motorway bridge.

The allegations

A clinical negligence claim was brought against the trust, which included a claim by the family for damages under the Human Rights Act 1998. It was alleged that there had been a breach of the deceased’s right to life under Article 2 of the European Convention on Human Rights, as a result of a failure by the State (through the defendant), to take all reasonable steps to protect him, as there was a real and immediate risk to his life through suicide or self-harm, of which the defendant ought reasonably to have been aware.

Despite the difficulties with the witnesses, simple steps meant that we could ensure a successful defence at trial.

Top tips: how to manage factual witnesses

  1. Make contact with the clinicians as soon as possible

It is important to make contact at the very start of the litigation (or complaint), where possible. Ask them to review the medical records and to provide comments regarding their involvement in the care, as well as for views upon the criticisms and allegations made.

If they are still employed by the trust, this is usually a relatively straightforward task - although some clinicians will need more prompting than others!

  1. Doing everything possible to locate clinicians who have left the Trust’s employ

It is important locate the clinicians involved in the patient’s care, even if they have left the trust’s employ. Top tips include:

  • Checking with medical staffing and writing to their last known address (using Special Delivery, which can be tracked and traced).
  • Asking the GMC/NMC for a last known address if you do not have it.
  • Contacting their colleagues; do they have a contact telephone number or email address for them?
  • Trying Google or utilising social media, LinkedIn etc.
  • Employing an independent search company.
  1. Manage their expectations at the outset

A claim can sometimes come ‘out of the blue’ for the clinicians involved, and they may be concerned about the litigation process if they are new to it.

Make sure they know what will be expected of them and when. A good way to do this is to ensure that they have attended a training session on drafting statements and giving evidence. If not, we can help implement a session at your trust (see below).

  1. Meet with them face to face and arrange for support within the trust

One of the most important steps is to meet your witnesses, face to face. This is an opportunity to discuss the claim openly and to consider any wider issues or concerns.

In the recent claim discussed above, one of the key witnesses was a nurse who had been treating the deceased for a number of years. Prior to a conference with counsel, we met with the nurse on two occasions to discuss the matter and before finalising her witness statement. At the conference, she became emotional and, at times, defensive, which was a concern. However, having regard to our previous meetings with her, it was felt that nonetheless ultimately she would make a very good witness.

It was possible to arrange for support from the trust and a further meeting was arranged to address her concerns. The nurse went on to give evidence at trial and was praised by the judge in his verdict.

  1. Ensure that they are kept up to date with the progress of the claim, dates for conferences and the trial

It can take many years for a case to progress to trial and it can de disconcerting for clinicians if they are not kept apprised of progress. It is important to give plenty of notice in relation to conferences and of course the trial itself, so they have time to prepare.

  1. If they are required to give evidence at trial, invite them to attend with a colleague or representative from the trust for support and provide reassurance

While the lawyers representing the trust will go to great lengths to make clinicians feel at ease, a courtroom is a daunting place and it helps to see a familiar face. The attendance at trial by members of the management team also sends a positive message that the staff have the full support and backing of the trust.

  1. Ensure that they have your contact details so that they can discuss any concerns that they may have

This is another way of ensuring that the channels of communication are kept open and that the clinicians have someone to turn to if they have questions about the litigation process.

  1. Last resort – Civil Evidence Act Notices

Unfortunately, we are often faced with a factual witness who does not want to be involved in the litigation (despite best efforts), has died or is seriously ill. If a witness statement has previously been taken in connection with an inquest for example, it is possible to serve this with a Civil Evidence Act Notice, although a valid and genuine reason must be given for this.

In certain circumstances, a court may be entitled to draw adverse inferences from the absence of a witness at trial. However, if the reason for their absence satisfies the court, then no such adverse inference may be drawn.