Guidance for staff when preparing statements (court/police) and attending inquests and court hearings

Transcription

1 SH NCP 61 Guidance for staff when preparing statements (court/police) and attending inquests and court hearings Version: 1 Summary: Keywords (minimum of 5): (To assist policy search engine) Target Audience: Provides guidance on report and statement writing when called to give evidence at a coroner s inquest or court hearing. Inquests, Court Hearings, Claims, Coroners, witness, statement, report, legal, police. All staff called as witnesses in court hearings and inquests. Next Review Date: September 2018 Approved & Ratified by: Quality, Improvement and Development Forum Date of meeting: Date issued: Author: Head of Legal and Insurance Services Sponsor: Helen Ludford, Associate Director of Governance 1

2 Version Control Change Record Date Author Version Page Reason for Change 17/5/16 Sarah Pearson 1 all Guidance reviewed, amended sponsor job title, no further changes required, review date extended to Sept 2018 Reviewers/contributors Name Position Version Reviewed & Date 2

3 Contents Page 1. Introduction 4 2. Responsibilities of Staff 7 3. Release of Health Records 9 4. Support to Staff, including payment of expenses 9 5. Statements and Reports Disclosure of sensitive patient information to the coroner Court Etiquette Tips about giving evidence Contact Numbers Further advice 11 Appendices A1 Guidance to Staff on Writing a Statement or Report 13 A2 Statement requested by the Trust 15 A3 Report requested by Coroner 16 A4 Checklist/Suggestions for the Director of Operations to consider 17 when approving a draft report for the Coroner 3

4 Guidance for staff when preparing statements (court/police) and attending inquests and court hearings. 1. Introduction Staff may be approached to provide statements and/or reports for any of the following reasons:- Inquests Criminal investigation Claims against the Trust Children proceedings Fraud and any investigations by Inland Revenue or other agencies Employment Tribunals Protection of Vulnerable Adults Professional Conduct Hearings Guidance on writing a statement is appended to this document, together with statement and report templates. Inquests Coroners inquire into deaths reported to them which appear to be violent, unnatural or of or unknown cause. The Coroner will seek to establish the medical cause of death; if the cause remains in doubt after a post mortem or if there is cause for the Coroner to suspect that the deceased died a violent or unnatural death, or died in prison, an inquest must be held. The coroner will conduct an inquest into all unexpected child deaths. Not all deaths are reported to the Coroner. In many cases a GP or hospital doctor can certify the medical cause of death and the death can be registered by the Registrar of Births and Deaths in the usual way. However, Registrars must report deaths to the Coroner in certain circumstances, e.g. if a doctor cannot give a satisfactory cause of death; if the death occurred during or shortly after an operation; if the death was due to industrial disease; or if the death was unnatural or due to violence or in other suspicious circumstances. Where an inquest is held, the Coroner s duty is to establish who the deceased was and how, when and where the deceased came by his or her death. An inquest is a fact-finding exercise which focuses on what happened, not who was responsible for what happened, for which the civil and criminal courts have jurisdiction. A jury will usually be appointed if the inquest relates to a death whilst under state detention (including detention under the Mental Health Act), an industrial accident or poisoning, as a result of injury by a police officer or where the death occurred in circumstances that could prove prejudicial to public safety if repeated (for example, train crashes). Staff may be approached by the Coroner s Officer (who is responsible for liaising with all interested parties on behalf of the Coroner) to provide a statement or a report to assist the Coroner in his enquiries. It does not always follow that by providing a statement or report the staff member will be required to attend the Inquest. However, 4

5 this is a matter for the Coroner to decide and witnesses can be summonsed to provide oral evidence if they do not attend voluntarily. In some circumstances, the Coroner will ask the Police to investigate the circumstances of the death and members of staff should co-operate in the same way. Where statements are requested from staff by the Coroner as part of his investigation into the death, these must first be approved by the appropriate manager within the division (as identified by the Clinical Director and Clinical Services Director) before they are agreed by the Divisional Director for submission to the Coroner. On occasions, Executive Summaries of Critical Incident Reviews are written with a view to this element of the CIR being disclosed to the Coroner or family members, which may negate the need for separate reports. However, such action should always be agreed by the Divisional Director. In complex cases those managers must inform the Head of Legal and Insurance Services who may also need to review the documents before they are submitted. For inquests where legal representation is required, this will be provided by the Trust. Where the Coroner s Officer or Police Officers who are acting on behalf of the Coroner in inquests request a statement to be given during interview, it is permissible for such interviews to be deferred. In complex, difficult or controversial cases, the Trust may advise using the Trust s solicitors to provide statements. Criminal Investigation Members of staff are most likely to be asked to provide evidence to the Police following a homicide where a current or former service user is either a key suspect or the victim. Officers will request statements from directly involved staff very quickly after the incident and evidence is gathered by interviewing the member of staff. Any interviews not held under caution are classed as informal and can be held at the Trust premises. The Trust wishes to co-operate as fully as possible with such investigations and urges staff to make themselves available if requested. If, however, the Police request an interview with a member of staff under caution, this amounts to a formal interview and it is imperative that Trust legal advice is obtained. For informal interviews it is permissible for a colleague to be present for support, and depending on the nature of the incident, it is sometimes appropriate to have the Trust s legal advisers present. Each case can be considered on its own merits. When a request is forthcoming, this issue should be discussed with the relevant Divisional Director and the Head of Legal and Insurance Services. Where health professionals belong to a Defence Union, Trade Union or a professional organisation, they may also wish to consult or obtain their own legal advice. In all cases it is permissible for members of staff to be given time to gather their thoughts and for an interview to be deferred, to allow the member of staff to access the relevant documentation or for legal representation to be arranged. For police interviews the usual format is that the Police Officer will have a face to face interview with the member of staff and will handwrite the statement on a standard form which the member of staff will then be asked to read, and make any amendments. The amendments are initialled and the member of staff will then be asked to approve the statement and sign the statement of truth at the end of each page of the statement. It is imperative that the member of staff is content that the 5

6 handwritten statement as transcribed by the Police Officer is a true reflection of what was said in the interview, as this will stand as that member of staff s evidence in any forthcoming criminal trial. The Police are increasingly reluctant to permit copies of statements to be kept by the witnesses, but it is still advisable to request a copy at the time of signing on the basis that this will be kept confidential. Claims against the Trust Occasionally members of staff are contacted direct by the service user s legal representative to provide a statement or report in connection with litigation against the Trust. The member of staff must notify their Area Manager immediately of such an approach as the Trust will be managing the litigation in accordance with agreements with the NHS Litigation Authority. Separate guidance on this area is available from the Head of Legal and Insurance Services who is responsible for ensuring the process is managed appropriately. Children Proceedings Children proceedings are heard in the Family Division Courts and involve proceedings under public law where local authorities are applying for orders concerning a child e.g. Care Order. The other type of proceeding is private law where parents are seeking various orders to decide such matters as residence, or parental responsibility. Those members of staff involved in Children s Services may be asked to provide statements/reports by a local authority, or a parent, or their legal representatives. These statements require careful and detailed consideration, however the Trust only provides these following a court ruling (and we are provided a copy of that ruling) or the Local Authority s legal team have requested a report. Child protection issues/critical incidents may be involved. Where parents legal representatives are contacting members of staff, careful consideration must be given by the Child Protection lead and/or the Head of Legal and Insurance Services to discuss whether any statement or report should be provided, and whether legal advice should be sought. In Local Authority Court proceedings, it is rarely inappropriate to provide such a statement. It is likely that these statements will need to be provided quickly given new timescales by which Courts must now hear children s cases, with all relevant input from health professionals. NB: Where child protection proceedings are issued the Trust s Safeguarding Team for Children must be consulted. Fraud or similar investigations, including benefit fraud Individuals may be asked to provide a statement or attend Court as part of a criminal investigation for HM Revenue & Customs, Local Counter Fraud Specialist or other agencies including those investigating benefit fraud. The member of staff must report the matter as set out in SH FP4: Counter Fraud Policy. Employment Tribunals Employment Tribunals deal with claims concerning dismissal, redundancy, and discrimination, pay, and employment contracts. They are legal bodies which sit in public. A Tribunal consists of a legally-qualified chairman and two lay members - one representative of employers and the other representative of employees. 6

7 Staff may be asked to be witnesses either by the Trust or by the member of staff bringing the Tribunal claim. In some circumstances the Tribunal may issue a Witness Order to require an unwilling witness to attend. Witnesses normally provide a written statement in advance and are then available in person to be questioned by both parties and by the Tribunal. Witnesses are usually required to give their evidence on oath or affirmation. If you are a witness for the Trust, the Trust s advocate (usually a solicitor or HR manager) will inform you about the procedure. If you are a witness for the member of staff bringing the claim, their representative (often a Trade Union official) will normally give you this briefing. Witnesses may be called at a preliminary hearing, held to examine a particular issue, as well as at the main hearing. Many of the issues which are the subject of Employment Tribunals will previously have been raised in internal appeals within the Trust, generally with the same witnesses providing statements. Safeguarding for Adults and Children Members of staff are required to support individuals who are subject to multi agency safeguarding procedures for adults and children. Staff may be required to provide statements and reports as part of these processes and should follow the guidance set out in the multi-agency Safeguarding Adults Policy 2010 (SH CP15.2) and Safeguarding Children (SH CP 56). Staff may be called on to give evidence in criminal proceedings, particularly where a child has suffered death or significant harm. The Heads of Safeguarding (Adults; Children) will be available for advice, support and guidance in relation to complex safeguarding cases. Staff may be asked to give evidence or provide information in relation to offences against vulnerable adults who lack capacity (section 44 Mental Capacity Act 2005) and/or children. There may be occasions where the actions of a patient may trigger requests from agencies such as Police or MAPPA. Trust staff would need to co-operate with such investigations to ensure the safety of service user and other parties. 2. Responsibilities of staff ALL STAFF: AREA MANAGERS: to report any approach or request for a statement to the Area Manager and Professional Lead; to co-operate fully with the investigation process; to keep a copy of any statement given to the Police or the Coroner and to share this with the Area/Locality/Service Manager and/or Head of Legal and Insurance Services prior to its signing and submission. to report the request to the relevant Director of Integrated Service, Clinical Director, Communications Team and Head of Legal and Insurance Services (depending on the nature of the request); to liaise with the Police Officers investigating the matter to ensure that all relevant information is available to the Trust and the Police; to report the matter to the Trust s Communications Team 7

8 CONSULTANTS: DIRECTORS INTEGRATED SERVICES: OF CLINICAL SERVICE DIRECTORS: PROFESSIONAL LEADS: HEAD OF LEGAL AND INSURANCE SERVICES: to ensure any subsequent media coverage is handled appropriately. in conjunction with the local MHA Administrator, to report the death of any service user detained under the MHA to the Care Quality Commission (see below for contact number); to report the death of any inpatient service user (except natural deaths) to the relevant Coroner (or Police, if death occurs outside of normal working hours) (see below for contact number); to notify the relevant Director of Integrated Services, Professional Lead and Clinical Services Director of any request or approach received for a report or statement; to forward a copy of the final draft of any report to the Area Manager and Head of Legal and Insurance Services (where appropriate) so that, where necessary, legal advice may be obtained before it is submitted to the Coroner or agency requesting the report; to consider reporting suicides and homicides of any service user detained under the MHA to the National Confidential Enquiries on Suicides and Homicides (see below for contact number). to receive, consider and approve reports in draft before they are submitted to the Coroner; this task may be delegated to another manager (see Appendix 3 for guidance on what aspects benefit from being checked); to report the matter to the Medical Director (where a Consultant is involved) and to inform the Head of Legal and Insurance Services where appropriate. in conjunction with Directors of Integrated Services, review draft Coroner s reports and to provide support to clinical staff who have been called to give written or oral evidence at the inquest. to report the matter to the Medical Director (where a Consultant is involved) and to inform the Head of Legal and Insurance Services where appropriate. in conjunction with Directors of Integrated Services, review draft Coroner s reports and to provide support to clinical staff who have been called to give written or oral evidence at the inquest. to report the matter to the Medical Director (where a Consultant is involved) and to inform the Head of Legal and Insurance Services where appropriate. once notified, to liaise with the relevant Area Manager; once notified, to liaise with the Trust s solicitors where court proceedings are anticipated. The member of staff is likely to be requested to a) release the records of the service user to the Police or the Coroner and/or b) provide a statement of their involvement in the care and treatment of the service user. The Area Manager should be informed even if the approach to the member of staff has been made by another organisation for a statement where the death has 8

9 occurred, for example, in a neighbouring acute trust. The Area Manager should liaise with the Head of Legal and Insurance Services to establish whether there are any implications for the Trust and whether legal advice needs to be sought. 3. Release of Health Records The majority of the Trust s records are now held electronically. RiO (the primary record), or the relevant IT system, should be checked for any information which may be held in addition to any secondary (paper) records and a copy of both provided to the Coroner. It is important to check that the records held in every section of RiO are printed and that both validated and unvalidated entries are printed. Copies of electronic records should only be released with the agreement of the Area Manager. Originals of paper-based health records must not be released without the agreement of the Trust s Records Manager. In most circumstances, photocopies can be released when requested by the Police on behalf of the Coroner, with the Trust retaining the originals. On the rare occasions when the Coroner requests original documents, they may be provided but a copy set must always be retained by the Trust. Where a legal representative (other than the Trust s solicitor) is requesting original or copy medical records, advice from the Head of Legal and Insurance Services should be sought. In particular, there may be circumstances (e.g. child protection) where medical records may need to be withheld. Please refer to the Data Protection, Caldicott and Confidentiality Policy (SH IG 18) and Pan Hampshire Information Sharing Protocol (SH IG 37) for further advice on information-sharing and the management of service user information. 4. Support to Staff, including payment of expenses It is recognised that being involved in a serious incident and its subsequent investigation or inquest can be stressful and difficult for staff. The member of staff should contact their Area Manager to agree what support the Trust can provide. This may involve further involvement of the Trust s solicitors, including prior to the court hearing, arranging for staff to be briefed on the process; and/or having legal representation available; sitting in on another inquest; and/or having access to the Staff Counsellor within the Occupational Health Department. The Head of Legal and Insurance Services will instruct solicitors to represent the Trust where it is deemed appropriate. Where issues span both the Trust and Local Authority partners, the solicitors for each organisation may need to liaise where appropriate. As a minimum, the member of staff should be accompanied to court by either a colleague, their manager or the Area Manager. It may be appropriate to provide additional support or training as part of the preparations for the inquest. The Head of Legal and Insurance Services should be contacted in such instances by the relevant manager. Support is also available to staff via the Critical Incident Stress Management (CISM) service. Staff should refer to the website for how to access this service. Where attendance at the court hearing is work related, travel expenses will normally be paid by the Trust to those staff called as witnesses. 9

10 5. Statements All statements produced for the Coroner should be done so in the format of Appendix 3. Statements must be given priority and prepared in a timely fashion. A Coroner will normally expect such a document within 28 days of his request. Statements must be shared with the Area Manager in draft before they are sent to the Coroner and, where the case is complex or legal proceedings are anticipated, with the Head of Legal and Insurance Services who will comment on the report and consider whether the matter should be referred to the Trust s solicitors. It is important to extend our condolences to family members and to be mindful during the inquest of their loss and distress caused by reliving difficult events. Focus on fact and your interventions especially if cross examined by a barrister representing the family. 6. Disclosure of sensitive patient information to the Coroner It must be remembered that inquests are held in open court with family members, the public and press being in attendance. There are occasions when the Trust s clinicians will have knowledge of some very sensitive and confidential information which they may feel is necessary to bring to the attention of the Coroner although it may not be clear whether such disclosures are known to all or any members of the family. The Coroner has power to summon clinicians to an Inquest to give evidence. Written submissions are normally provided in advance as a matter of convention; the duty of confidentiality to the patient continues after a patient s death. The Coroner has a duty to obtain information and investigate for the purposes of establishing the cause of death. Information revealed to the Coroner, including copies of statements, will also be provided to the interested parties such as the family, unless this is confidential. The author of the document therefore needs to consider carefully the following options which may circumvent the issue of confidentiality and disclosure: 1. if the information is only relevant to the background history of mental health problems it could legitimately be omitted or paraphrased into a more neutral form; 2. if there is a concern that it is relevant, or for any reason it should be brought to the Coroner s attention, it could be put in a side letter enabling the Coroner to decide whether it is information which needs to be considered at the inquest; 3. if there is any doubt, there is no reason why the Coroner cannot be contacted and asked to consider how to deal with the problem. It would be important to ensure that the Coroner is not given information in a manner that might appear to discredit another interested party whilst balancing that against the need to ensure that the Trust does not appear to be withholding information. Under no circumstances should the statements be filed in the service user s health records. 10

11 7. Court Etiquette Address a Coroner as Sir or if female, Ma am. Address a Judge as Your Honour or Judge. All stand when Judge/Coroner enters/leaves the room. Witnesses are called when it is their turn to give evidence and are asked to swear an oath or affirm before giving evidence. Press and the public can be present throughout inquests. At inquests, family members or their representative may question the witness, in addition to the Coroner and the representatives of the other interested parties. 8. Tips about giving evidence: - Speak clearly and slowly. Take time to compose your thoughts. The Coroner will take hand-written notes, so watch him/her and check that he can keep up with you, if not, slow down or pause. Do not say more than is necessary to answer the question. If the answer is yes or no, then that is enough. Do not talk to fill pauses. Ensure that you are familiar with your statement and the records; flag up the relevant passages in the medical records to make reference easier. You may take a copy of your statement and the medical records with you and should feel free to refer to them if you need to whilst giving evidence. If you do not understand a question, say so. I do not know and I cannot remember are entirely appropriate responses, where that is the reality. If you think that someone else would be better placed to answer a question, say so. Do not go beyond your area of expertise. You are not required to answer any question that may incriminate you. Please dress appropriately for court. Be aware the press and family members may be present so the dress code is smart but comfortable. 9. Contact Numbers Care Quality Commission: National Confidential Enquiries on Suicides and Homicides: Coroners Offices: Southampton and Western: Portsmouth/South East: North East: Oxford: Further advice Please contact the Head of Legal and Insurance Services, Tatchbury Mount; tel: for further information and guidance or for a copy of the leaflet entitled Preparing for an Inquest produced by the Trust s solicitors. A video entitled Giving Evidence at an Inquest is also available for downloading on the Staff website. 11

12 NB. This document is not intended to provide guidance on external enquiries or multi team investigations. There are a range of external enquiries all with differing requirements. 12

13 APPENDIX 1: GUIDANCE TO STAFF ON WRITING A STATEMENT OR REPORT You may be asked to provide a statement as a result of an untoward incident, a complaint, a coroner s inquest or for proof of evidence during legal proceedings. The following guidance aims to assist you in preparing your statement. 1. Do not panic. Don t feel pressured into providing a statement immediately. You must compose it with due thought, care and with reference to relevant documents. Remember that the statement needs to be as accurate as possible, so try to complete it as soon as you have all the information you need. 2. Make sure you understand the task, if you are unsure about what you are being asked to do, seek guidance from:- Your Line Manager Complaints Manager (tel: ) Head of Legal and Insurance Services (tel: ) Professional or Trade Union Representative (RCN/Unison/MDU) 3. Your statement must include your :- Full name Qualifications and brief details of your relevant experience Details of the post you hold and your job location, i.e. ward State the time you started and finished the shift on the day(s) in question 4. Be clear about why you are writing the statement, what it is for and who will need to read it. Quote the relevant reference numbers if associated with a reported accident/incident or a complaint. 5. Assume the reader has no background knowledge of the case, nor any hospital routines. It may be read by a Coroner or jury and therefore needs to provide the lay-person with relevant information. 6. Write in the first person as this provides an easier picture of who did what, why, when and to whom. 7. Always refer to the service user s health care records to help you. 8. List the events in the order in which they occurred giving precise dates and times. 9. Concentrate on your observations and understanding, provide a factual account, not supposition or opinions. Include your interpretation of events and information and the history given to you by the patient or from what you have read in the records and correspondence. Demonstrate that your history and examination were thorough: include not only what you found but what you looked for and failed to find 10. Write simply and avoid jargon or abbreviations. Write short precise paragraphs. 11. Within your report, state which details are based from your memory; the contemporaneous records; what others wrote; and your usual or normal practice. 12. When mentioning procedures, describe them clearly. If you mention a drug, explain what type it is (e.g. antidepressant), its full name, dosage and route of administration. 13

14 13. Where another clinician has been involved in the care of the deceased, identify them with their full name and professional status. You may describe your understanding of what they did and the conclusions they reached purely on a factual basis. 14. Always refer to the guidelines currently available at the time in question. 15. If normal procedures were not followed, state what the normal procedures are and why these were not followed. 16. When referring to other people, be precise in their full name and title. 17. Get the final statement typed on Trust headed paper. 18. Check your statement thoroughly and keep a copy for reference. 19. Ensure that your statement is shared with the Area Manager and/or Head of Legal and Insurance Services prior to its signing and submission. 20. Sign and date each page of your statement, print your full name and job title below your signature on the final page. It is good practice for the statement to generally end with: This statement is true to my knowledge and belief. 21. Consider using the phrase untimely death in statement to avoid making it emotive for family members. 14

15 APPENDIX 2: Statement requested by the Trust in respect of complaints, incidents. Not for use when submitting evidence to a Coroner see Appendix 3 Full Name (please print):... Job Title:... Contact Number: Requested by (e.g. Line Manager Name):... Date Request Received:... Date Statement Required:... Reason for report (your understanding of this request and include name of patient/third parties): Your qualification(s)... Brief details of your relevant experience: Current post:... Location (i.e. Ward/Dept)... Post at the time (if different)... Location (i.e. Ward/Dept):... How long employed in that role?.. Associated Documentation Accident/Incident No. Details of Event: (continue on a separate sheet if necessary) Signature... Date... Time.. Copy to the Head of Legal and Insurance Services ASAP, at Tatchbury Mount via NHSmail. Under no circumstances should the statement be filed in the service user s health records. 15

16 APPENDIX 3: Report requested by Coroner: CONFIDENTIAL REPORT FOR THE CORONER Touching the death of [Name of Deceased]; Date of Birth: [dd/mm/yyyy]; Date of Death: [dd/mm/yyyy] I, [Full name and title], will say as follows: 1. I am a [job title] employed by Southern Health NHS Foundation Trust since [mm/yyyy]. My qualifications are. My professional career has been as follows: 2. I became [name of deceased s] Consultant/Care Co-ordinator/.. on. 3. In preparing this report I have referred to [state which documents you have looked at to help you prepare your report e.g. health records / your own recollections of the patient]. [Depending on the individual circumstances, use the following headers within your statement to make reference to the relevant topics] 4. MHA/Legal Status 5. Personal Family Background 6. Social Circumstances 7. Past Psychiatric History 8. Diagnosis 9. Personality 19. Physical Condition 11. Risk Assessment 12. Events leading to Admission 13. Events leading to the tragic incident (ensure you take account of any information arising from the Initial Management Report and/or Critical Incident Review) 14. Reference to any relevant Trust Policies and Procedures or Protocols 15. Summary and Conclusions I declare the contents of my statement to be true to the best of my knowledge and belief. Signed. Dated:.(on each page) The draft report must be sent to your Area/Locality/Service Manager for comment before it is forwarded to the Coroner. Under no circumstances should it be filed in the service user s health records. 16

17 Appendix 4: Checklist/Suggestions for the Divisions to consider when approving a draft report for the Coroner Does the report follow the guidance at Appendix 3 of NCP 24 including: name of deceased; date of birth and date of death of deceased; qualifications of the author; suggested headings; and the statement of truth? Check the report contains the correct spelling of the deceased s name. Does the report contain the same key data/information as the CIR? Do all the dates reconcile? Does the report contain matters of opinion? (it should not). Is the report pre-empting the Coroner s verdict? Are all abbreviations explained? Is the report free of jargon and any NHS terminology explained? Where medications and doses are included, is the reason for their prescription explained? 17