Your statement of truth really, really matters!

Not many court experts, signing the statement of truth at the end of their reports, are thinking about the clang of the prison gates.  The recent decision in Liverpool Victoria Insurance v Zafar [2019] EWCA Civ 392 is a reminder that they should.

The medical expert revised a prognosis in his medical report by adopting his instructing solicitor’s suggestion, and without re-examining the client or exercising any professional judgment.  There was no clinical justification for the amendment.  It was not perhaps surprising that the judge had held that the expert was reckless as to the truth of the revision and as to whether that would mislead the court, and for that contempt of court passed a sentence of 6 months imprisonment but suspended it.

The Court of Appeal was asked to find the sentence unduly lenient.  It did.

It was emphasised that making a false statement verified by a statement of truth is a serious offence.  Doing so deliberately or recklessly would usually result in committal to prison, and the offence remained serious even if there was no direct financial motive on the part of the expert for the false statement.  In the case of an expert witness, it made little difference whether the false statement was made deliberately or recklessly.

The maximum sentence for contempt is 2 years’ imprisonment.  A sentence “well in excess of 12 months” was the starting point.  Early admission and co-operation, genuine remorse and previous unblemished professional record were all relevant, but breach of the court’s trust by a professional witness could be expected to result in severe sanctions.  That experts in this position will have brought ruin upon themselves was not a reason not to impose a significant custodial sentence.

The Court of Appeal indicated immediate custodial sentence would be the norm, and there would have to be powerful factors to justify suspending the sentence.

The expert in this case was not re-sentenced as the guidelines now available by this judgment were not available when he was sentenced.  However it was made clear that now an appropriate sentence would be an immediate custodial sentence significantly longer than six months.

Conclusion

An expert must take the statement of truth required at the conclusion of an expert report for any court or tribunal extremely serious.  Although rarely read, as it is pasted into a report or appears in the template, it does bear reading.  To recklessly or deliberately misstate matters in the report in breach of that statement of truth is likely to result in an immediate custodial sentence, as well as terminal consequences for the expert’s professional status.

Similar weight should also be given to the sign-off of a joint statement following a joint discussion between experts.  In civil claims this requires a brief restatement that the experts recognise their duties to the court and that they have not been instructed to avoid reaching agreement on any matter within their competence. An intentional or reckless false statement is likely to have similar consequences.

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More expensive problems with medical record keeping

The inadequacy of medical record keeping is again in the legal headlines.  In Shaw v Stead [2019] EWHC 520 the issue for the judge was whether the patient’s red flags symptoms for possible cauda equina were missed by the out of hours GP.  The patient had been kicked in the back while crouching by a 5 year old pupil.  The patient and her husband had different recollections of the appointment to the GP, who could not remember the examination and had to rely on his notes.

It was not in contention that the red flags would have been:

  • any change in saddle sensation;
  • any change in bladder or bowel function;
  • severe or progressive loss of power in the lower limbs; and
  • bilateral leg pain and/or sensory disturbance.

The patient asserted that she had attended the appointment in a wheelchair, she told the nurse she had been unable to pass urine but had wet herself subsequently, that her legs felt like ‘Bambi’ and that the examination was brief.  The GP said that it was his usual practice to ask patients with low back pain questions to exclude red flag symptoms suggesting possible cauda equina syndrome. This would include asking about problems passing urine and questions such as whether the patient felt her legs would not take her weight, or whether pain was restricting her walking.

The GP’s note read “no red flags, tender lower back especially left sacro iliac area. Unable to perform straight leg raise either leg reflexes equal and normal. Sensation normal”.   This meant, he asserted, that he would have asked questions about each of the red flag symptoms and that there was nothing in the history given by the patient to require referral. The GP experts in the case accepted that a reasonable GP might use this as shorthand rather than noting the response to each red flag question.

The record of “sensation normal” meant, he said, that he had checked the sensation in both legs by running a finger along the claimant’s bare skin. She recalled keeping her pyjama bottoms on at all times.

He also noted his record “call back if no improvement” and asserted that he would specifically have advised about red flags to look out for and told the patient to seek further medical advice if any emerged.

Although there was no note that the patient attended in a wheelchair, the GP said it would have been his usual practice to record a wheelchair, but nonetheless accepted that that might well have been the case, although at earlier stages in the proceedings it had been denied.  This inconsistency did not assist the GP’s case.

The judge accepted the patient’s account of the urinary accident and her ‘Bambi’ legs (which were supported by her husband), and found that straight leg raising was probably prevented by pain.  The GP had no recollection of how the SLR assessment was made.

The judge’s conclusion was that the patient did have “red flags” necessitating a referral at the time of the GP’s examination and therefore that the GP’s record could not be relied upon.  The GP was found to be in breach of duty to the patient.  The judge was not called upon at this stage to address the issue of the damage resulting from the delay in referral that this caused.

This case is another clear illustration of the importance of making complete records of examinations so as to be able to explain what occurred at the examination if some years later the events are the focus of investigation.  It may not be negligent to fail to do so, but the consequences are nonetheless clear and potentially serious.  Relying on ‘standard’ or ‘usual practice’ is insufficient.  In this case the records should have contained a brief note of:

  • The patient’s presentation (eg walking, using a stick, in a wheelchair, apparently in pain)
  • The history taken and any unusual and relevant events or their absence (eg urinary retention or incontinence or the absence of both)
  • In relation to the relevant red flags, a brief indication of the questions asked and answers given (eg no urinary retention/incontinence, weakness in legs, how SLR finding was made)
  • In relation to the examination, how it was carried out (eg sensation tested on low back through thin garment).

Finally to say “usual advice given” or “call back if no improvement” is not the same as stating “advised to call if

  • any change in saddle sensation;
  • any change in bladder or bowel function;
  • severe or progressive loss of power in the lower limbs; and
  • bilateral leg pain and/or sensory disturbance”

or recording that an advisory sheet was given containing that information.

Medico-legal Minder addresses how to make complete, concise and yet practical (and quick) records and notes in chapter 8 of his latest book.

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