Form of Witness Statement in GMC Cases

Witness Statements in GMC/MPTS Cases

Below is guidance to doctors on how they and they witnesses should draft their witness statements for GMC/MPTS cases.

*

EXAMPLE 1 (Factual Statement from a Witness):

IN THE MEDICAL PRACTITIONERS TRIBUNAL SERVICE

MEDICAL PRACTITIONERS TRIBUNAL
FITNESS TO PRACTISE HEARING

GMC v Dr Adam Bloggs

__________________________

FIRST STATEMENT OF MR XX

__________________________

I, Mr XX, will say as follows:

1. I am a colleague of Dr Adam Bloggs and was on duty on the day of the alleged incident concerning Nurse Y.

2. …(INSERT WITNESS EVIDENCE IN NUMBERED PARAGRAPHS)

3. My relevant qualifications are…

4.  Exhibit AB1 which I attach is my certificate of GMC registration.

5. I have been shown the statement of Ms Donna Brown-Cimmins, a fire prevention expert, and have no comments to make on it. I accept the contents.

6. I have been shown Exhibit A1. I agree that the map shows the location of the fire exit. I enclose my own exhibit, Exhibit AB1, which is a better plan of the fire door location, which shows the car park we muster in.

7. I recall that there was a fire on the third floor of the hospital, but I have had to be prompted, by my reading the insurance claim form, to recall the date and time of the fire; namely GMC Exhibit page 12 at para 3

8….

The contents of this statement are true to the best of my knowledge and belief. This statement is provided for use in GMC/MPTS proceedings.

signed dated

——

The  defence witness should ensure that they have explained why they challenge the evidence of other witnesses and also ensure that their full eye witness account, or matter they are being asked to comment on, is set out in sufficient detail to be understood by others, with clarity. Where they have knowledge from documents they should refer to them and exhibit them, explaining the chronology.

Practice Direction 57AC (albeit not a direction for MPTS hearings) is a useful guide on how to write a statement. See Practice Direction 57AC Civil Procedure Rules. A doctor should not send a statement with the same wording to each witness, for them to sign. The witness must use their own words, in the first person. A statement should make clear the elements that are from personal recollection and the elements of the statement that are prompted by exhibited documents.

________________________________

EXAMPLE 2 (Doctor’s Statement Commenting on Evidence):

Where a doctor is responding to a statement, they will need to write in the following way:-

Statement of Patrick Mel O’Connor

  1. I now comment on the statement of Patrick Mel O’Connor, dated 1/12/15:-
  2. Paragraph 1: I cannot comment, as I do not know.
  3. Paragraph 2: Accepted in full.
  4. Paragraph 3: Denied. The witness is mistaken. It was raining that day, it was not sunny as alleged. The meteorological office’s weather report for then area is attached as Exhibit DB1. It confirms that it was sunny all day and had been all week.
  5. Paragraph 4: Denied. I did not strike the patient first. I struck the patient in self-defence, after they had hit me in the face twice and after I anticipated a further punch to my head. I am sorry that I had to react in that way but I acted spontaneously, to ensure that I was not hit further and to put some distance between us. I immediately withdrew, when it was safe for me to do so.
  6. I accept in full the contents of GMC Exhibit BB4 (at page 6).
  7. I do not accept the contents of GMC Exhibit BB5 (Page 7) as it does not correctly state the minutes of the meeting with my employer. The employer has failed to include in the minutes the fuller context of the meeting and the documents that I produced at the time. I now exhibit as Defence Exhibit DB2 (pages 24 to 26) the documents I submitted to the meeting.
  8. In the latest statement made by the witness (dated 2/8/21) he claimed that I “ranted and raved” – shouting – at him in the corridor, in front of others. However, in his earlier statement (12/7/18) he claimed that I left the building quietly, in the company of a hospital porter. This inconsistency is an important one. I did not rant and rave at him or anyone else. I did not shout.

It is important that the doctor conveys their detailed defence case as well as responding to the allegations made by witnesses, bearing in mind the evidence in the witness statements and exhibits that support the allegation. Additional paragraphs will be needed to more fully explain the history of events and to put matters in proper context. In some instances, there may be a need for nuanced language to explain what is and is not accepted.

A doctor should cross-reference their statement to their paperwork and the GMC’s paperwork, referring to page numbers. In some instances, it is useful to add footnotes, with superscript22 numbers in the main work. Like the 22, which then corresponds to a footer number. This enables the doctor to make additional points, without interfering with the flow of the main text.

Note that some factual allegations do not explain the specific mischief (which is at the heart of the misconduct element of the allegation) that the doctor is said to have committed. A close examination of the relevant evidence of the witnesses therefore needs to be undertaken, to ensurer that admissions are appropriate. A doctor should not fail to carefully examine the GMC exhibits, too.  This is often missed.

Any defence evidence that is favourable to the doctor or which undermines the GMC’s witness evidence should be identified and exhibited in a defence bundle, or be referred to in the relevant GMC bundle by way of cross-referencing to page numbers.

The MPTS requires doctors to set out their evidence in a witness statement. See also Practice Direction 57AC Civil Procedure Rules for some useful guidance on how to write a statement. This practice direction is not binding on MPTS hearings but would help a doctor to present their evidence correctly, if they followed it.

There is also some case law that relates to the same practice direction, which sets out further the way a statement should deal with evidence. A statement should not be a place for “narrative, commentary and argument” in most instances [at paras 27-37]: Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2747 (TCC) (October 2021) Consideration could be given to annexes for guiding tribunals to the relevant materials. Further, a chronology of events, cross-referenced to the page numbers of the bundles can also be of great assistance. See also Blue Manchester Ltd v Bug-Alu Technic GmbH & Anor [2021] EWHC 3095 (TCC) (November 2021) In essence, a witness statement should be written in the first person, and be in the witness’s own words.

If the doctor gives evidence on a subject matter that is not mentioned or sufficiently detailed in their statement they may be criticised by the GMC for “inventing” their replies and the tribunal might choose to give weight to such criticism of the doctor, if advanced by the GMC’s advocate. A doctor’s statement should therefore be thorough enough to deal with all of the matters which the doctor would like to advance at a MPT hearing or other hearing.

If documents have to be obtained from third-parties they should be identified early on so that requests can be made for disclosure. On occasion the GMC may be able to obtain documents which the doctor has been unable to obtain, despite their best endeavours. Some electronic and archive systems record when a document or image was viewed, and if this is relevant to the defence case then such information should be obtained.

The same would apply where a doctor is answering the concerns raised by an expert instructed by the GMC. On occasions, the GMC expert will give alternative opinions, which will be relevant if the tribunal makes certain findings of facts. A doctor who is responding to the concerns raised by the expert will need to explain which scenario occurred. It is usually also necessary for the doctor to instruct their own defence expert, in good time.

The doctor should ensure that each of their paragraphs are numbered, for clarity. Clear reference to exhibit bundles and statement bundles is essential, so that the tribunal can easily follow the narrative.

It is not enough merely to reply to the paragraphs. A doctor should set out their defence in advance of writing a reply to the allegations, at the beginning of the document.

Responding to a GMC Expert Report

A GMC expert report requires careful and concise replies, based on documentary and other evidence. Where a doctor is replying, they should go through the expert report and give a reply to each concern raised. The relevant paragraph numbers will need to be referred to, so that any reader can follow the expert report and the doctor’s response.

Questions that one might ask: Are the facts correct, on which the expert relied? If not, in what way? How can this be evidenced? Can the holes in the evidence be plugged? Are their conclusions and inferences fair and reasonable? Does the academic and medical literature support the position? Is there moire than one reasonable body of opinion? Can it be argued that the doctor is not at fault, or has not been sub-optimal in their practice. What remediation is needed? What evidence can be obtained to show current fitness, whether or not the history (as alleged) is true. These questions will not always be relevant to a case, but they can be helpful as a starting point in some cases. Time is of the essence, and it is recommended that a doctor takes advice early on in their case, so as to be well-prepared to make formal replies.

Defence Experts

It is likely that a defence expert will need to be instructed, to opine on the issues of concern. Often there needs to be a discussion between experts, in order to narrow the issues. Experts need to be instructed properly, if used. It is usual to instruct an expert, and they can take some time to opine, and so there should be no delay in instructing. Proving current competence and fitness can be as important as challenging past allegations of incompetence or poor conduct.

________________________________

EXAMPLE 3 (RESPONSE TO ALLEGATIONS):

For doctors responding to allegations, the doctor should also copy and past the allegations and state whether the allegations are admitted or denied. So, by way of example, the bold replies are the notional doctor’s response to the below allegations.

That being registered under the Medical Act 1983 (as amended):

  1. On 9 January 2015, when Dr V asked you why only Patient A’s nose had been x-rayed, you told Dr V that:

ADMITTED

  1. a. you had requested a full cranial X-ray or words to that effect;

ADMITTED

b. you had been present and had witnessed the X-ray being taken;

ADMITTED

  1. You knew that your statements as set out at paragraph 1a and 1b were untrue because you had:

(i) only requested an X-ray of Patient A’s nose; and,

ADMITTED

(ii) had not been present.

ADMITTED

  1. Your actions as described in paragraphs 1 to 2 were:

a. misleading;

ADMITTED

b. dishonest.

DENIED

Doctor’s Reply: There had been a simple misunderstanding between us. I was busy and had misunderstood the nature of the question.

More detail may be needed in each reply to make sense of the admissions and denials that are being made by the doctor.

***

EXAMPLE 4 (TESTIMONIALS):

IN THE MEDICAL PRACTITIONERS TRIBUNAL SERVICE

MEDICAL PRACTITIONERS TRIBUNAL (MPTS
FITNESS TO PRACTISE HEARING

GMC v Dr Adam Bloggs

___________________________

CHARACTER STATEMENT OF MS HH

___________________________

Dated:

Address:

Phone Number:

Email:

For the attention of the GMC/MPTS

I have known the registrant for X years, S/he worked in the capacity of XX, while I worked as a GG. I worked with them between SS and DD dates.

I have read the GMC allegations. [You must have seen them in full to say this, of course. Or if they have not yet been formulated, you must have a sufficient understanding of what the doctor is facing.]

THEN INSERT FULL TESTIMONIAL OR CHARACTER STATEMENT IN YOUR OWN WORDS. COMMENT ON THE DOCTOR’S COMPETENCE AND INTEGRITY, AND WHETHER THERE HAVE BEEN ANY SIMILAR CONCERNS TO THOSE RAISED IN THE ALLEGATIONS. EXPLAIN HOW LONG THE DOCTOR HAS BEEN KNOWN TO YOU AND IN WHAT CAPACITY.

IF YOU HAVE PREVIOUSLY WRITTEN A STATEMENT YOU CAN MAKE REFERENCE TO IT (Append it to the statement and you should add: I attach a copy of my original statement).

See the linked guidance below, so that you do not fall into error

Include in the statement

I believe that the facts stated in this statement are true. (I am content  for my statement to be submitted to the GMC/MPTS)

SIGNED (insert signature)

Dated

*

If the case is not yet been referred to the tribunal, the heading mentioning the MPTS (in brown, above) can be omitted.

IMPORTANT: For more information on drafting a character statement or testimonial for a doctor facing GMC proceedings, see our guidance: Contents of Testimonials and Character Statements in GMC Cases. There are specific Dos and Don’ts of writing a character statement.

Ensuring that Character Witnesses Know the Full Facts, to obtain an Informed Statement

It is essential to ensure that character witnesses are entirely familiar with the history of events that led to the GMC allegations, so that the doctor gains full credit, where possible, for being open.  A character witnesses’ knowledge of the fullness of the admissions (and history) may well be tested (if they are called to give evidence), in order to see whether the doctor has minimised their responsibility. This is how the tribunal tests how genuine the doctor’s admissions and apologies are likely to be.

***

EXAMPLE 5 (MEDICAL REPORTS):

A doctor might seek to rely on clinicians and other professionals to provide a report about a mental or physical health condition or psychiatric condition, presentation, therapies, diagnosis and prognosis. If an individual is being called formally as an expert witness, they will need to comply with the Part 35 Civil Procedure Rules for Experts, and keep good notes of meetings with clients and lawyers and instructions from lawyers or their client.

Where an individual is being asked to provide a report when they are not participating in the legal process as an expert, it might be useful to cover the matters listed below. Note the above declarations and general presentation of a header for statements should also be included.

Possible questions for a healthcare or therapeutic professional to comment on:

  • Qualifications, Experience, and any Specialist Interests within Psychiatry / Psychology / Psychotherapy / Physical Illnesses / Healthcare
  • How do you know the doctor client/patient?
  • Public or privately funded?
  • How long have you known them?
  • What is the medical or other issue(s) that has been identified?
  • Any formal diagnosis? Any differential diagnoses?
  • What are the aims and objectives of the professional therapist / clinician in this situation from the beginning, currently, and in the future
  • What is the proposed programme of care/therapy/referrals and length, sessions, interventions, treatments
  • What has occurred to date?
  • Degree of engagement of the patient
  • Time-frame envisioned for ongoing therapy or intervention
  • How progress will be measured
  • How will further therapy / treatment be funded / identified
  • Will referrals to others be needed?
  • What insight does the person have into any illness they are suffering from?
  • Have they built up resilience?
  • Do they have insight into their illness?
  • Has there been improvement?
  • Is it in remission, ongoing, or is the person now
  • Are they fit to work?
  • What are the risks of relapse in the future?
  • Any concluding remarks about the future / prognosis

This list may not be relevant to all cases.

On occasions, tribunals may wish to see clinical notes and records of clinical or therapeutic meetings, to assess the quality of the evidence.

***

See also our article about the reliability of clinical records versus oral testimony from recollection. A witness must do their best to explain their recollection, and point out the records that they rely on in support. The court or tribunal will then undertake an evaluation of all of the evidence and its overall credibility, which includes an analysis of discrete issues, where relevant.

***

For more information on how to compile a witness statement, contact Doctors Defence Service on: 0800 10 88 739