The value of contemporaneous documentation

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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Giving notice of matters capable of undermining your opinion or your credibility

The Criminal Practice Directions (CPD) have just been amended in relation to expert evidence provided for criminal proceedings.  The requirements of the new Directions are expressly applicable to criminal proceedings but their content is just as applicable to any expert seeking to give unbiased and reliable evidence to any court or tribunal.  To look at that the other way round, the matters to which this Direction relate are all matters which could seriously embarrass an expert and the party by whom the expert is instructed in any proceedings if admitted to for the first time under cross-examination, and the failure to disclose them could lead to serious consequences for the expert, including financial penalty and reference to the appropriate professional body.

CPD 19A.7 gives examples of matters which should be disclosed as potentially undermining the reliability of an expert’s opinion or detracting from the credibility or impartiality of an expert, both in relation to the expert and in relation to any corporation or body for which the expert works.

  1. any fee arrangement under which the amount or payment of the expert’s fees is in any way dependent on the outcome of the case;
  2. any conflict of interest of any kind, other than a potential conflict disclosed in the expert’s report;
  3. adverse judicial comment;
  4. any case in which an appeal has been allowed by reason of a deficiency in the expert’s evidence;
  5. any adverse finding, disciplinary proceedings or other criticism by a professional, regulatory or registration body or authority;
  6. any such adverse finding or disciplinary proceedings against, or other such criticism of, others associated with the corporation or other body with which the expert works which calls into question the quality of that corporation’s or body’s work generally;
  7. conviction of a criminal offence in circumstances that suggest: (i) a lack of respect for, or understanding of, the interests of the criminal justice system (for example, perjury; acts perverting or tending to pervert the course of public justice),  (ii) dishonesty (for example, theft or fraud), or  (iii) a lack of personal integrity (for example, corruption or a sexual offence);
  8. lack of an accreditation or other commitment to prescribed standards where that might be expected;
  9. a history of failure or poor performance in quality or proficiency assessments;
  10. a history of lax or inadequate scientific methods;
  11. a history of failure to observe recognised standards in the expert’s area of expertise;
  12. a history of failure to adhere to the standards expected of an expert witness in the criminal justice system.

CPD 19A.8 states that where there has been adverse comment in the course of a judgment, it would be reasonable to expect those criticised to supply information about the conduct and conclusions of any independent investigation into the incident, and to explain what steps, if any, have been taken to address the criticism.

The potential sanction in criminal proceedings under CPD 19A.9 is ‘a searching examination of the circumstances by the court’ of a failure to disclose, and potentially the exclusion of the expert evidence in the proceedings.  But in any proceedings these would all be matters likely to impact on the reliability of the expert’s evidence and should be raised by the expert with the instructing solicitor if not referred to in the report itself.

[Who or what is medico-legal minder?  Terms and conditions apply]