Records and notes made at the time of clinical practice – notes of an examination, operation records etc or letters or emails sent immediately afterwards – will carry substantial weight in court or other tribunals or hearings if the events to which they relate come under scrutiny at a later date, for example in a claim for damages or for professional misconduct.

In Clinical Practice and the Law – a legal primer for clinicians Section 2.4 I wrote:

In understanding the lawyer’s mind it is important to keep in mind the distinction between an oral (spoken) account of something which has happened and a contemporaneous (or near contemporaneous) written record.  With the best of intention, memory is fickle, often selective, weighted by cognitive bias and often lacking in detail, but it is also subject to innocent re-interpretation in the light of subsequent knowledge or facts.  And of course it may be adapted, intentionally or unintentionally, in order to excuse past actions or inaction.  In contrast, a written record, although it may be falsified, if genuinely made contemporaneously to the events to which it relates, reduces the chances of all of these failings.

This means that a careful, full and explanatory record made at the time of the events to which it relates (or made very shortly afterwards) is likely to carry greater weight when seeking to ascertain what happened and why, than an oral account given subsequently when the events are being put under a critical microscope in court or some other hearing or process.

In a recent case Simetra Global Assets Ltd & Richcroft Investments Ltd v Ikon Finance Ltd [2019] EWCA Civ 1413, and in a non-clinical setting, the Court of Appeal made the same point, in criticising the trial judge for failing to explain why he did not accept the evidence provided by contemporaneous records:

A party’s internal documents, including email and instant messaging, tended to show a witness’s true thoughts and were generally regarded as more reliable than their oral evidence or demeanour in court.  Therefore, where contemporary documents which appeared on their face to provide cogent evidence contrary to the conclusion the judge proposed to reach, the judge should explain why they were not to be taken at face value or were outweighed by other compelling considerations.

It is difficult to over-emphasise the importance of ensuring that the clinician makes clear and comprehensible notes and records at the time of, or very shortly after, any involvement with a patient.  Not only will these be useful for the clinician if providing further care to the patient at a later date, or other clinicians taking over from the original record maker, but they should provide a complete explanation as to what took place and why, and, if that was competent and appropriate, a complete answer to later criticism, however that might arise.

More guidance as to what the records and notes should contain, and how to make them concisely and within the limited time available, is covered in Section 8 of the book referred to above.  An explanation of the many processes in which the clinician may be involved should there be criticism of past conduct is covered in Section 15.

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