Giving Evidence

As a doctor, you may be asked to give evidence in many different types of tribunals, including criminal or civil courts, the coroner’s court and employment or mental health tribunals. 

The GMC says you must be honest and trustworthy when giving evidence. Make sure that any evidence you give or documents you write, or sign, are not false or misleading. You should recognise and work within the limits of your competence.

If you are called as a witness, your role is to provide impartial evidence to help the court reach its decision. There are different types of medical witnesses:

• Professional witness – you are being called to supply factual information obtained in your capacity as the treating doctor in a particular case; it is important to stick to the facts, and not to stray into providing opinion beyond the scope of your expertise.
• Expert witness – you are being called to give an independent opinion on the facts of a case, based on your own specialist knowledge and experience, but without any personal involvement with treatment in the case. See below for more on Writing expert reports

If you are served with a witness summons, you must attend at the specified time and for a set duration. You must comply with a witness summons, otherwise you risk being found in contempt of court – this is a criminal offence and might, in addition, be reported to the GMC. 

Disclosure of confidential information

Your duty of professional confidence is not automatically waived by being called to give evidence; therefore, you should not give confidential information without the patient’s express consent. If you are asked for this information, you should explain that you do not have the necessary consent to provide it and decline to answer. However, you must disclose information if you are ordered to do so by the court.

What happens in court?

The procedure is fairly similar for civil and criminal courts. The claimant in a civil action or the prosecution in a criminal trial will put their case first. Their witnesses will give evidence and be cross-examined; once this has happened, the defendant will respond. After the evidence has been heard, both parties will make closing speeches and the judge will sum up the evidence.

In a civil case, the judge will decide, on the basis of the law and the evidence presented, whether to find in favour of the claimant or the defendant. If the claimant is successful, the judge will also decide on the level of compensation that should be paid.

In a criminal case, the judge will sum up the evidence and advise the jury on the law to be applied. The jury will then deliberate on the facts and give their verdict. If convicted, the judge will determine the sanction.

• Remember that you are impartial to the parties – your duty is to the court
  Speak clearly, using short sentences – try not to over-elaborate and explain any technical terms you may have to use
• You are giving evidence to the judge/coroner/chairman, so ensure that you face them when answering a question
• Listen carefully to each question. Make every answer open, honest and fair
• If you don’t know the answer, or understand the question, say so
• Don’t lose your patience with the opposing counsel. Lawyers are working on behalf of their clients and disparaging comments can be a deliberate tactic – the best witnesses are those that remain neutral and focused
• You can appeal to the judge if you feel that a question is improper, or if you would like to expand on your answer.

Writing expert reports

As an expert you should be aiming to produce a report which is free standing – from which the reader can glean the key issues in the case, understand the evidence available and reach a clear understanding of the range of expert opinion, without needing to look at any other document.

A good report should include:

1. A title page.
2. Numbered pages, short numbered paragraphs and appropriate subheadings.
3. Your personal details, name, current post, summary of previous experience, your GMC registration number and whether you hold a current license to practice.
4. Statement of the opinion you have been asked to provide and details of your relevant knowledge/experience enabling them to comment on the issues.
5. List of documentation considered and relied upon in reaching your opinion on the case.
6. Chronology and summary of the relevant evidence.
7. Where you have undertaken an examination or performed other investigation(s).
8. The opinion.
9. The concluding paragraph.

Expert witnesses can be sued

Following the 2011 Supreme Court decision in Jones v Kaney, expert witnesses are now exposed to the risk of being sued in respect of evidence given in court.

Members involved in expert witness work should keep Medical Protection fully informed about the type of professional work they are doing, so that they have access to the appropriate indemnity at all times.

Medical Protection has specific guidance about indemnity provisions when providing medicolegal reports/acting as a medicolegal expert.

Inquests

An inquest is a fact-finding exercise that is conducted by the coroner and, in some cases, in front of a jury. The purpose of an inquest is to find out who died – when, where, how and in what circumstances.

An inquest is held in cases where the death was:

• violent or unnatural
• when a person is in state detention, including prison/police custody, detention under the Mental Health Act
• or when the cause of death is still uncertain after a postmortem.

You should record the details of referral to the coroner in the patient’s records. The coroner may also hold an inquest if the death was due to natural causes and an inquest is considered by the coroner to be in the public interest.

Giving evidence at an inquest

Evidence is given by witnesses under oath, which means that you are under a legal obligation to tell the truth at an inquest. It is not a function of the coroner to apportion blame – the coroner’s court is one of investigation and inquiry; it is not adversarial.

However, questions from family members can be hostile and interested persons have the right to representation. Your Trust may arrange legal representation to protect the Trust’s interests. They may also be able to represent you. If you are self-employed – for example, in general practice – or in cases where there is a potential conflict between your interests and those of your employing trust, separate representation can be provided through Medical Protection.

Notifying the GMC 

The GMC’s Good Medical Practice now includes an obligation (set out at paragraph 75[a]) for a doctor to inform the GMC without delay in circumstances when they have been criticised by an official inquiry – which would include a coroner’s inquest.

In England, a change to the National Health Service (Performers Lists) (England) Regulations 2013 places performers under an obligation to inform NHS England if the coroner has found that the performer’s actions have caused, or contributed to, the death of the deceased, or otherwise had their conduct brought into question at an inquest conducted as part of an investigation under the Coroners and Justice Act 2009.

If a doctor is concerned that they may be (or have been) criticised in the context of a coroner's inquest (including in a Regulation 28 report – see section headed "Prevention of future deaths") then they should contact Medical Protection at the earliest opportunity to seek advice about the appropriate steps to take.

Jury inquests

A jury will usually be appointed if the inquest is regarding a death whilst under state detention (including detention under the Mental Health Act), an industrial accident or poisoning, or as a result of injury by a police officer. It will also be appropriate where deaths occurred in circumstances that, if repeated, could prove prejudicial to public safety (for example, train crashes).

Verdicts

• The coroner can bring the following verdicts:
• Natural causes
• Accident or misadventure
• Suicide
• Narrative, which enables the coroner to set out the circumstances by which the death came about
• Unlawful killing
• Miscellaneous (drug dependence/industrial)
• Neglect
• Open, meaning that there is insufficient evidence to decide how the death came about – the case is left open in case further evidence appears.

The coroner can refer a doctor or doctors to their regulatory body if the coroner considers that it would prevent a recurrence of the incident that caused the death.

Standard of proof required at an inquest

The standard of proof applied at an inquest is the civil standard – the coroner and jury must be sure that it was more likely than not (on the balance of probabilities) that the facts have been found proven to support the verdict. There are exceptions: if the verdict of suicide or unlawful killing is reached, it must be proven beyond all reasonable doubt (this is the criminal standard).

What happens at an inquest?

An inquest is held in public and is a formal proceeding. Unlike a court case, there is no prosecution and defence. However, the witnesses may be represented by lawyers.

The coroner decides who to call as a witness. As part of his investigation, the coroner will request a statement from you and may call you as a witness at the inquest. If you are called as a witness, the coroner may ask you to read through your statement, or may take you through the statement in court. You may be asked to produce a report and may not be called as a witness if your evidence is unlikely to be controversial.

“Interested persons” are permitted to ask questions. The coroner will decide who fulfils these criteria. The questions will not be in the nature of a cross-examination, as in other courts. You are not obliged to answer the questions if the answer would incriminate you. If the coroner is not satisfied that all the information is available at the inquest, or the appropriate witnesses are not available at the inquest or there is to be a police investigation into a possible crime, the inquest may be adjourned.

Prevention of future deaths

Following the inquest, the coroner can write a report in cases where the evidence suggests that further avoidable deaths could occur and that, in the coroner’s opinion, preventative action should be taken. The report will be sent to the person or authority who may have the power to take the appropriate steps to reduce the risk, and they have a mandatory duty to reply within 56 days. These reports, formerly known as Rule 43, are now routinely published on www.judiciary.gov.uk. This means that, for the first time, the public will have access to these reports in a searchable and readable format.