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  5. Doctors giving evidence in court

Protecting children and young people: The responsibilities of all doctors

Doctors giving evidence in court

Key points

  • The first duty of all witnesses is to the court.
  • Give evidence that is impartial, honest and not misleading.
  • Only give testimony and express opinions about issues that are within your professional competence.
  • Work within the timescales set by the court.

Duties of all witnesses

76

Whether you are acting as an expert witness or a witness of fact, you have a duty to the court and this overrides any obligation to the person who is instructing or paying you.30 This means you have a duty to act independently and to be honest, trustworthy, objective and impartial. You must not allow your views31 about a person to affect the evidence or advice you give.

30

See Ministry of Justice Civil Procedure Rules London, The Stationery Office, rule 35.3, Ministry of Justice Criminal Procedure Rules London, The Stationery Office, rule 33.2, Act of Adjournal (Criminal Procedure Rules) 1996, Criminal Justice (Evidence) (Northern Ireland) Order 2004, Ministry of Justice Family Procedure Rules London, The Stationery Office, rule 25.3, Children’s Hearings (Scotland) Rules 1996

31

This includes your views about a patient's lifestyle, culture or their social or economic status, as well as the characteristics protected by legislation: age, disability, gender reassignment, race, marriage and civil partnership, pregnancy and maternity, religion or belief, sex and sexual orientation.

77

You must understand your role as a witness throughout the court process. You must cooperate with case management, making sure you meet the timescales for producing reports, and going to conferences, meetings or court hearings.

78

When giving evidence or writing reports, you must restrict your statements to areas in which you have relevant knowledge or direct experience.

79

You must make sure that any report that you write, or evidence you give, is accurate and not misleading. This means you must take reasonable steps to check the accuracy of any information you give, and to make sure that you include all relevant information.

80

People who do not have a medical background may rely on your advice and evidence to help them make decisions. Where it is possible to do so without misleading anyone, you should use language and terminology that people who are not medically qualified will understand. You should explain any abbreviations and medical or other technical terminology that you use. Diagrams with explanatory labels can be useful.

Giving evidence as a witness of fact (professional witness)

81

Witnesses of fact (also known as professional witnesses) provide professional evidence of their clinical findings, observations and actions, and the reasons for them.

82

As a witness of fact, your written and oral evidence should be clear and concise, and must be based on clinical records and notes made at the relevant period of time. You may include some opinion about the findings – for example, about how an injury to a child or young person has been caused – but you should make clear what is factual evidence and what is your opinion based on your professional judgement and experience.

Giving evidence as an expert witness

83

The role of an expert witness is to help the court on specialist or technical matters that are within the witness’s expertise. Courts find the evidence of expert doctors extremely important in judicial proceedings. An expert witness is able to consider all the evidence available, including defence statements and reports, before forming and providing an opinion to the court.

84

You must make sure you understand exactly what questions you are being asked to answer. If your instructions are unclear, you should ask the solicitor instructing you to explain. If the instructions are still not clear, you should not provide expert advice or opinion.

85

You must only give expert testimony and opinions about issues that are within your professional competence.32 If a particular question or issue falls outside your area of expertise, you should either refuse to answer or answer to the best of your ability but make it clear that you consider the matter to be outside your competence.33 

32

The same principle applies where a doctor acts in a role other than as a witness – for example, as an adviser in a case.

33

The Right Honourable Justice Wall (2007) A handbook for expert witnesses in Children Act cases Bristol, Jordans, 2nd edn

86

You must give an objective, unbiased opinion and be able to state the facts or assumptions on which it is based. If there is a range of opinions on an issue, you should summarise the range of opinions and explain how you arrived at your own view. If you do not have enough information on which to reach a conclusion on a particular point, or if your opinion is qualified (for example, as a result of conflicting evidence), you must make this clear.34 

34

See [2007] EWHC 136 (Fam).

87

If you are asked to give an opinion about a person without the opportunity to consult with or examine them, you should explain any limits that this may place on your opinion. You should be able to justify the decision to provide your opinion.

88

If, at any stage, you change your view on any relevant matter, you have a duty to make sure the solicitor instructing you, the other party and the judge are made aware of this without delay. You should tell your instructing solicitor, who should tell the other people who need to know. If the solicitor fails to do this, you should tell the court about your change of view. If you are not sure about what to do, you should ask the court or get legal advice.

89

You must respect the skills and contributions of other professionals giving expert evidence, and not allow their behaviour to affect your professional opinion.

Notes and records

90

You must make full and accurate notes of meetings or interviews with the child or young person and other people involved in the case at the time that an event happens or as soon as possible afterwards. Any notes or reports you make must be written fairly and impartially.

Keeping up to date

91

You must keep up to date in your specialist area of practice. You must understand and keep to the law and codes of practice that affect your role as an expert witness. In particular, you should make sure you understand:

  1. how to write a report that follows the procedures set out by the courts
  2. how to give oral evidence.
92

If you have expertise and experience in acting as an expert witness, you should be willing to share your knowledge with colleagues who might be called to give evidence in court to help build their confidence and willingness to give evidence in the future.

Information security

93

You must take all reasonable steps to read all relevant papers and keep them secure while in your possession.

94

If you receive information about a person and have reason to believe that they have not given consent for the information to be shared, you should return the information to the person instructing you and seek confirmation that consent has been given.

95

You should not reveal confidential information to anyone who is not involved in the court proceedings, unless one of the following is true.

  1. The person the information relates to gives their consent (and there are no other restrictions or limits on sharing the information).
  2. You must do so by law.
  3. You are ordered to do so by a court or tribunal.
  4. Your overriding duty to the court and the administration of justice means that you must reveal the information.

Conflicts of interest

96

If there is a possible conflict of interest – for example, you have been professionally or personally involved with one of the people involved in the case in the past, or you have a personal interest in the case – you must make sure the people instructing you, the other party and the judge are made aware of this without delay. You should follow the process for communicating with the court set out in paragraph 88 to do this. You may continue to act as an expert witness only if the court decides the conflict of interest will not affect the case.

88

If, at any stage, you change your view on any relevant matter, you have a duty to make sure the solicitor instructing you, the other party and the judge are made aware of this without delay. You should tell your instructing solicitor, who should tell the other people who need to know. If the solicitor fails to do this, you should tell the court about your change of view. If you are not sure about what to do, you should ask the court or get legal advice.

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