1. Why is witness evidence so important?
- It presents a case from a factual perspective, forming the basis for the evidence that would be given at any trial of the matter, by a factual witness.
- The strength of a defence can be highly dependent on how good the witness evidence is - very rarely would you run a case to trial without it.
- Preliminary responses from doctors/nurses will usually reveal those cases that should be settled early (before significant costs are incurred!)
2. When are witness statements drafted?
- Preliminary comments from potential witnesses should be obtained as soon as a potential claim is anticipated. It should be remembered that particularly in cases involving children or disabled persons, proceedings may not be served for many years. Comments should be obtained whilst memories are fresh.
- Once a formal Letter of Claim and/or court proceedings are served, detailed responses to the specific allegations can be sought and preliminary comments can be formalised as witness statements.
3. Who should provide a witness statement?
- Any member of staff who can provide factual details relevant to a claim should be asked to provide a witness statement. This may not always be limited to staff directly involved in the patient’s care. It could, for example, include staff who would have been involved where the claim concerns a hypothetical admission or referral (i.e. where it said something should have occurred but it did not in fact happen).
- The clinician under whose care the patient was admitted at the time of the alleged negligence is often asked to prepare a preliminary report. The junior doctors can also be contacted at an early stage if they played a significant role in an operation or treatment plan which is criticised.
- If a doctor/nurse has left the hospital, their GMC or UKCC registration number can be used to a forwarding address.
4. How is a witness statement drafted?
There are various requirements for a formal witness statement set out in the civil procedure rules. These include specific requirements that statements should be typed, have paragraph and page numbers.
It is typically the case that any witness statement will commence by setting out the qualifications and experience of the person providing the statement. There will then be a chronological account of their involvement with the patient concerned. It is important that the statement does not express opinion, but is restricted to matters of fact.
The witness statement must always end with what is known as a ‘statement of truth’. It is a criminal offence to give evidence without a reasonable belief in its truth and, therefore, signing a statement should not be undertaken lightly. Witnesses should carefully consider their statements and make any necessary amendments before signing.
Any alteration to a witness statement must be initialled by the person making the statement or by an authorised person. If a witness wishes to amend their statement at a later date, consider the preparation of a supplementary statement rather than substituting a new statement. The first statement has the benefit of being prepared shortly after the event in question when recollections were clear.