Medico-legal work is for expert witnesses

Many physiotherapists think medico-legal work is for expert witnesses but any CSP member may be involved as a witness of fact. This article should give you the confidence to be a witness of fact and write a statement setting out your involvement with a patient’s care if needed.

We answer your questions on:

How might you be involved as a witness of fact?

Serious untoward incidents, patient complaints, clinical negligence claims, and coroner’s investigations may require a review of your clinical records or a statement. It is important that all physiotherapy providers of any size have clear policies in place to manage these situations.

The initial stages of any investigation will involve information gathering. As the treating physiotherapist, you will have first-hand direct involvement with the patient or the situation. You cannot decline to participate and you cannot charge for your time.

Why are records so important for making a statement?

Records provide factual evidence from the clinician’s perspective of an event, which may be important when the patient may have a different recollection of events. Clear records help investigators form an opinion on whether the care provided was reasonable and appropriate in the circumstances. 

In addition, it’s often said ‘if it isn’t written down it didn’t happen’. While this statement is not always true, incomplete records make it harder to defend challenges to your practice and may make writing a statement more difficult.

Where to get support if you need to provide a statement

Your first point of contact should always be your manager/practice manager. Next, contact your organisation’s clinical governance or legal departments. All NHS organisations have a legal department. You do not need representation or legal advice to make a witness of fact statement, but the person asking you to write a statement should expect to give you support and answer any questions you have.

If you’re a business owner, you may need to support your staff yourself and you may require external legal advice if you don’t have specialist services in-house.

If you are unsure whether any actual or potential event you are asked to comment on might lead to a claim against you, check if you need to make a PLI notification. 

Making a statement – why your records matter

How might you be involved as a witness of fact?

Serious untoward incidents, patient complaints, clinical negligence claims,and coroner’s investigations may require a review of your clinical records or a statement. It is important that all physiotherapy providers of any size have clear policies in place to manage these situations. The initial stages of any investigation will involve information gathering. As the treating physiotherapist, you will have first-hand direct involvement with the patient or the situation. You cannot decline to participate and you cannot charge for your time.

I’ve been asked to write a statement. What now?

Your role is to help the investigation establish what has happened. Use these tips to help you write your statement. Remember – you are responsible for the contents of your statement. Other people can advise you on the format, layout, spelling and grammar of your statement but only you can decide on the content. 

• Be clear on what you are being asked to comment on, for example timelines and dates.
• Check if you need the patient’s permission. You will not always need this.
• Always get a copy of your clinical records beforehand and use these as the basis of your statement.
• Only include events you were personally involved with and make it clear where you were not involved.
• Stick to the facts. Keep your explanations within your own scope of expertise.
• Explain why you did the things recorded in your records – describe your usual practice if necessary.
• Be clear what evidence you are using to support your statement eg NICE/SIGN guidelines or departmental policy.
• Make it clear if you are relying on memory where records are incomplete.
• Do not give any opinion on the events or practice in general. That is the role of the ‘expert witness’. 
• Paginate, sign, and date your statement.
• Send documents by secure post or end-to-end encrypted digital means, unless you are told otherwise.

What can you do now?

• Check out our new medico legal webpages.
• Check your organisation’s policies regarding serious untoward incidents and complaints.
• Make sure all your electronic and written notes comply with HCPC and CSP record keeping standards.
• Review how you currently keep records. Can you do some quality improvement work to create or improve your templates? Templates can save time, and provide a visual prompt when you consult with a patient. 

More information

CSP Professional Advice Service

The CSP’s Professional Advice Service gives advice and support to members on complex and specialist enquiries about physiotherapy practice, including professional practice issues, standards, values and behaviours, international working, service design and commissioning, and policy in practice. 

• Abigail Henderson and Pip White are professional advisers at the CSP