There are many reasons why doctors are asked to give statements relating to patients they have seen, such as a coroner's investigation or where a claim has been brought against their hospital by a patient.
What they have in common is that they are 'witnesses of fact', often referred to as professional witnesses, and are being asked for a factual account of their involvement in the patient's care.
Some doctors with specific knowledge and expertise may be asked to assist the court as expert witnesses by providing opinion evidence that is impartial, objective and independent, but this guide is primarily for witnesses to fact.
It is important to understand that all witnesses' primary duty is to the court or tribunal and not to the patient or those who instruct them.
Ethical considerations
Although it may seem obvious, any report about a patient is likely to contain confidential information. If the patient is alive, make sure you have their permission to provide a report about them unless disclosure of the information is required by law, such as a court order. If you are unsure, speak to the MDU's advisory team before disclosing anything.
The Medical Council in its ethical guide reinforces the principle of obtaining consent and reminds doctors that reports, "should be specific to the episode for which the report has been requested"1. It also makes clear that reports must be "relevant, factual, accurate and not misleading"2. In this context, 'misleading' also means the report should not omit something that is or could be relevant, and doctors have been criticised by the courts for doing so3.
Where you have been asked to provide a witness statement, and you agree, you should do so promptly. If there are unexpected events that could lead to a delay, let those instructing you know and tell them when you expect to be able to provide the report. Where timescales are set by a court or tribunal, these must be followed.
Practical advice on drafting a statement
1: Some basic biographical information and context provides a logical start for any statement. Give your full name, professional qualifications and job description in the opening paragraph. This can be followed with an explanation of who has requested the statement and why.
2: Next, explain which documents you have relied on in writing your statement and if any of it is based on your memory of events. While your recollections can help add detail to a statement, a good starting point is to read the medical records carefully before you draft anything. If they are of good quality they may well contain all the relevant information.
3: Having set your statement in context, you can move on to the heart of it; an account of the relevant events. This should take the form of a clear, factual and chronological description covering each relevant point during the course of the incident(s). Where you are using medical terminology, including the names of therapeutic procedures and drugs, bear in mind that not everyone who reads your statement will be medically qualified, so explain anything that might not be obvious in lay terms.
In addition to the basic details of the event, there are other less obvious points that are helpful to include.
- Were others present as witnesses?
- Specific dates and times, if possible.
- The full name, dose, route and description of any drugs mentioned.
- If others were involved, you can describe your understanding of what they did but it's important not to criticise them. Remember your role is to provide a factual account, not an opinion about the significance of those facts.
- Any negative findings.
- If you wish to include anything not documented in the records, you should specify where these details come from. If it's from memory, then you can explain this. Alternatively, if you think you did something but can't recall it, you can explain what would have been your usual practice in the circumstances.
4. As well as considering what information should be included, there are some other practical points to bear in mind when writing a statement.
- It should be typed on headed notepaper or in line with any template you have been asked to use.
- It should be capable of standing on its own so the reader does not have to keep referring to supporting documents.
- Avoid using medical jargon/abbreviations.
- It's good style to write in the first person - for example, "I examined the patient," rather than, "The patient was examined".
- Ensure your report is honest, accurate and complete - be mindful of the Medical Council guidance on writing reports2.
- Keep a copy of your final statement in case you are called to give evidence at a hearing or tribunal.
1 Medical Council (2016) Guide to professional conduct and ethics for registered medical practitioners, paragraph 40.1.
2 Medical Council (2016) Guide to professional conduct and ethics for registered medical practitioners, paragraph 40.2.
3 See, for example, Waliszewski -v- McArthur and Company (Stell and Metal) Limited [2015] IEHC 264 at paragraph 85.
This page was correct at publication on 08/03/2021. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.