Providing Evidence in Legal Proceedings - Guidance on the Preparation of Written Reports and Giving Evidence in Person

Transcription

1 Providing Evidence in Legal Proceedings - Guidance on the Preparation of Written Reports and Giving Evidence in Person Synopsis: This guidance describes the processes to be followed by LPT FYPC employees in responding to requests for court reports and other legal statements or if called to give evidence in person Key Words: Legal, Court, Evidence, Statements, Proceedings, Information Sharing, Requests Version: 8 Adopted by: FYPC Clinical Governance Group Date adopted: September 2014 Name of originator/author: Name of responsible committee: Date issued for publication: Roma Boobyer Claire Silcott FYPC Safeguarding Group September 2014 Review date: March 2015 Expiry date: September 2015 Target audience: FYPC (All) Type of Policy (tick appropriate box) Clinical NHSLA Risk Management Standards if applicable: State 00Relevant CQC Standards: Outcome 7 Non Clinical

2 CONTRIBUTION LIST Key individuals involved in developing the document Name Designation Roma Boobyer Named Nurse Child Protection Claire Silcott Named Nurse Safeguarding Children Circulated to the following individuals for comments Name Designation Chris Buzzard Service Manager Health Visiting and School Nursing Dr A Elias-Jones Consultant Paediatrician, Named Doctor Dr I Kershaw Consultant Paediatrician, Named Doctor Sam Kirkland Records Transformation and Information Governance Manager Frank Lusk Trust Secretary Vicky McDonnell Trust Lead Quality and Patient Safety Vicki Spencer FYPC Clinical Governance and Quality Lead (ex FYPC Safeguarding Lead). Jackie Wilkinson Trust Lead Safeguarding Circulated to the following professional groups for comment Clinical Team Leaders - Health Visiting and School Nursing Named Nurses Safeguarding Children FYPC Safeguarding Group Page 1

3 Contents Page Definitions that Apply to this Policy 4 5 Equality Statement 6 1. Executive Summary 6 2. Introduction & Purpose The Duty of Confidentiality & Ensuring Disclosure is Appropriate & Lawful Disclosure of Confidential Information The Rights & Powers of the Police Requests from Private Law Firms/Solicitors Duties within the Organisation Writing the Statement or Report Evidence in Person Monitoring Compliance & Effectiveness Due Regard References, Related Documents & Recommended Reading 22 Appendices Appendix 1 Template for Main Body of Report 23 Appendix 2 Front Sheet for all Reports to Leicester City Council 24 Appendix 3 Front Sheet for all Reports to Leicestershire County Council 25 Appendix 4 Front Sheet for all Reports to Rutland County Council 26 Page 2

4 Version Control and Summary of Changes Version Date number 1 Undated Comments (description change and amendments) New policy. First draft Apr Apr Jun-13 V4 Circulated for initial consultation on specific points of content. Comments from Records transformation and IG Manager incorporated Jun-13 Amended following consultation on V Apr-14 Amended following consultation on V5 and revision of original terms of reference May-14 Amended following consultation on V Jun-14 Amended following comments from Records Transformation and Information Governance Manager All LPT Policies can be provided in large print or Braille formats, if requested, and an interpreting service is available to individuals of different nationalities who require them. Did you print this document yourself? Please be advised that the Trust discourages the retention of hard copies of policies and can only guarantee that the policy on the Trust website is the most up-to-date version. For further information contact: Roma Boobyer, Named Nurse Safeguarding Children Claire Silcott, Named Nurse Safeguarding Children Safeguarding Children Team, Beaumont Leys Health Centre Tel Page 3

5 Definitions that apply to this Policy Child Court order (aka Directions ) Court report FYPC Legal proceedings LPT Police Statement Safeguarding Children Any person who has not reached their 18th birthday. A court order is an official proclamation by a judge that defines the legal relationships between the parties to court proceedings. Such ruling requires or authorizes the carrying out of certain steps by one or more parties to a case. A court order must be signed by a judge. A written statement of information (evidence) that will assist the court to reach a decision. A report should be a written account of what would be said if the witness were present in person. It should be focussed but comprehensive enough to include all information relevant to the issue under consideration. Families, Young People and Children (Division of LPT). A legal proceeding is any (legitimate) activity used to enforce a law, or obtain legal remedies pursuant to a law. The term legal proceedings includes proceedings brought by or at the instigation of a public authority, and any appeal against the decision of a court. Leicestershire Partnership NHS Trust. A police report is the physical record of an incident deemed to be illegal or potentially illegal. It is taken by a representative of a police department and filed according to said department's procedure. Safeguarding Children is a multi-stranded identifying concept that reaches beyond basic child protection to incorporate the additional aims of preventing the impairment of children s health and development, ensuring children are growing up in circumstances consistent with the provision of safe and effective care, as well as protecting children from maltreatment. The UK Government has defined the term safeguarding children as, The process of protecting children from abuse or neglect, preventing impairment of their health and development, and ensuring they are growing up in circumstances consistent with the provision of safe and effective care that enables children to have optimum life chances and enter adulthood successfully. Page 4

6 Vulnerable adult (adult in need of safeguarding) Witness Section 59 of the Safeguarding Vulnerable Groups Act 2006 states that: A person is a vulnerable adult if, having attained the age of 18, s/he: 1. is in residential accommodation, 2. is in sheltered housing, 3. receives domiciliary care, 4. receives any form of health care, 5. is detained in lawful custody, 6. by virtue of an order of a court, is under supervision per Criminal Justice Act 2003 sections regarding community sentences; 7. receives a welfare service of a prescribed description, 8. receives any service or participates in any activity provided specifically for persons who has particular needs because of his age, has any form of disability or has a prescribed physical or mental problem. (Dyslexia, dyscalculia and dyspraxia are excluded disabilities), 9. has payments made to him/her or to an accepted representative in pursuance of arrangements under Health and Social Care Act 2012, and/or 10. requires assistance in the conduct of own affairs. A person having information and/or knowledge that will assist the court in reaching a decision. Page 5

7 Equality Statement Leicestershire Partnership NHS Trust (LPT) aims to design and implement policy documents that meet the diverse needs of our service, population and workforce, ensuring that none are placed at a disadvantage over others. It takes into account the provisions of the Equality Act 2010 and advances equal opportunities for all. This document has been assessed to ensure that no one receives less favourable treatment on the protected characteristics of their age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex (gender) or sexual orientation. In carrying out its functions, LPT must have due regard to the different needs of different protected equality groups in their area. This applies to all the activities for which LPT is responsible, including policy development, review and implementation. 1. Executive Summary Requests to provide information in legal proceedings are regularly received by the organisation and we have a duty to assess each request and respond appropriately. Such requests may take the form of a police witness statement, court report or may require attendance at court to give evidence in person. The purpose of such evidence is to enable the court to reach a sound judgement. This Guidance will outline the duties and responsibilities of employees in relation to providing evidence, both in writing and/or in person. It will provide information on how these requests should be responded to within FYPC with the specific intention of ensuring all employees have clarity and confidence in discharging this aspect of their professional role. 2. Introduction and Purpose This Guidance is produced in order that practitioners within FYPC can safely, appropriately and competently share information that contributes to legal processes and supports sound decision making during the conduct of a specific case. In addition to outlining the duties and responsibilities of employees it is recognised that this is a potentially challenging aspect of professional practice. For this reason LPT are committed to supporting employees who may be called upon to contribute to legal processes. Practitioners are reminded that in addition to the information contained in this Policy, further support and advice is available through managers, safeguarding professionals, clinical supervisors and others. All employees can also access confidential emotional support through Amica. This Guidance must be read in conjunction with other relevant Trust policies and practice guidance. Practitioners are specifically directed to Section 6 of the LPT Safeguarding Children Practice Guidance, LPT Guidance for Dealing with the Police and Other Public Bodies and the LPT Information Sharing Policy. Requests for information for the Coroner should be managed in accordance with the LPT Practice guidance for supporting staff preparation and appearance as witnesses within Coroner s Inquests. Page 6

8 This Guidance document should not be considered as exhaustive as it is not possible to account for every possible scenario or eventuality. In certain circumstances, it will be necessary to seek advice from senior colleagues such as team leaders, service managers, safeguarding professionals, the Records Transformation and Information Governance Manager or the Caldicott Guardian. Consideration should also be given to guidance published by the Department of Health, General Medical Council, the Nursing and Midwifery Council and other relevant professional bodies. 3. The Duty of Confidentiality and Ensuring Disclosure is Appropriate and Lawful The organisation as a whole, and individual practitioners, are rightly very aware of the potential sensitivity of much of the information that is held about clients. There is an emphasis on retaining the confidentiality of personal and medical information held by individuals and systems. In consequence it can be a source of both doubt and anxiety when requests to share such information are made. It is for this reason that the following section does contain considerable detail, with an emphasis on helping staff members to determine when disclosure is appropriate and lawful. If, after consulting the guidance, the practitioner remains unsure further advice should be obtained before any information is disclosed. Employees must be aware that some legal cases may be of interest to the public and will attract media attention. It is essential to be alert to the possibility of contact from the media and all such enquiries should be referred immediately to the Communications Team. The Trust has a legal and ethical duty to ensure that information held by LPT is kept confidential and used only for the purposes of care and treatment. The duty of confidentiality arises from the principle that an individual has the right to expect that information relating to their health and well being will be held in confidence and will be used for their own benefit. This principle has been reinforced by the common law and Statute, in particular Article 8 of the European Convention of Human Rights: respect for private and family life which is embedded in the Human Rights Act Information may be disclosed to a third party with the patient s consent. Wherever possible, written consent should be obtained. In the majority of cases, information held by the Trust must not be disclosed to a third party in the absence of the patient s consent. 3.1 Circumstances under which the Duty of Confidentiality may be Overridden The duty of confidentiality is fundamental to the special relationship that exists between a patient and his medical advisers. However, in certain situations, disclosure of confidential patient information in the absence of the patient s consent, and/or contrary to his/her express wishes, can be justified. Careful consideration must be given to every request for information to determine whether disclosure can be justified on one or more of the following grounds:- Page 7

9 It is required by Statute It has been ordered by a Court of Law It has been requested by the Coroner It is in the public interest (when the duty to society is deemed to be greater than the Trust s duty of confidentiality to an individual) It is in the patient s best interest 3.2 Safeguards The Trust is required to take reasonable steps to ensure that any information disclosed to a third party will not be used for any other purpose than that for which disclosure was deemed justified. It is accepted that staff will have little or no control over how information is processed once is has been disclosed. However, it may be necessary at a later date to justify the extent and nature of the disclosure. This may be in response to a complaint made by the patient, or by the Police if a failure to disclose information hindered or prejudiced a criminal investigation. When considering a request for third party disclosure, the following information must be recorded in the patient s medical records:- The name, position and contact details of the person/organisation making the request The reason why the patient s consent was not obtained e.g.:- Consent was withheld The patient was unconscious or otherwise incapacitated The patient is a minor and parental consent could not be obtained The name and position of the member of staff who made the decision The basis on which the decision was made, e.g.:- The patient lacks the mental capacity and disclosure was deemed to be in the patient s best interests Disclosure was in compliance with a Court Order, a copy of which should be filed in the patient s medical records Disclosure was deemed to be in the public interest The extent of the disclosure, e.g. name only; address; medical details etc. The name, position and contact details of the third party to whom the information was disclosed, by whom; when; and by what means 4. Disclosure of Confidential Information If it has been established that the patient will not, or cannot, consent to disclosure of confidential information, staff should consider whether disclosure might be justified. Page 8

10 4.1 Pursuant to Statute There are a number of Acts of Parliament that can require disclosure of confidential information. The ones most likely to generate disclosure requests FYPC practitioners are listed below, however, the list is not exhaustive The Children Act 1989 & 2004 Section 27 of the 1989 Act places an obligation on NHS bodies to co-operate with the provision of information to other NHS bodies, Education Authorities, appropriate national bodies and other relevant bodies to disclose information in connection with a Section 47 investigation into the well-being of a child. Please refer to Child Protection Procedures for information about the statutory provisions and child protection matters The Crime and Disorder Act 1998 Section 115 makes it lawful for NHS bodies to exchange relevant information as part of a strategy to reduce crime and disorder. The extent of the disclosure will be limited to information, which may assist with the detection or prevention of crime. The requesting party may be the Police, the Probation Service, the Youth Justice Team, Customs and Excise and/or other associated public bodies. The request should be made in writing and should be considered by a senior member of staff. The terms of this statutory provision are vague and potentially wide ranging. If there is any doubt as to whether disclosure can be justified under this provision, advice should be sought from a senior colleague Disclosure to statutory regulatory bodies pursuant to statute Patient records or other patient information may be needed by a statutory regulatory body, for instance, to investigate a health professional s fitness to practice. Wherever practicable, the patient s consent must be obtained. If the patient withholds consent or cannot be contacted, you should seek further advice. Disclosure may be justified in the public interest or for the protection of other patients. Medical staff only Section 35 of the Medical Act (1983) gives the General Medical Council (GMC) power to require doctors to supply any document or information which appears relevant to the discharge of the GMC s functions provided that, disclosure is not prohibited by other legislation. It may not be clear which piece of legislation takes precedence and further advice should be sought if you are unsure. 4.2 Pursuant to a Court Order If you are unsure that disclosure in the absence of patient consent can be justified, should be informed that the Trust will not disclose information unless ordered to do so by a Court of Law. This may arise if the requesting party has provided inadequate or incomplete information, such that, the Trust is unable properly to consider the request. Page 9

11 If the request for disclosure is pursuant to a Court Order you must:- File a copy of the Court Order in the patient s medical records Disclose only the information specified in the order 4.3 At the request of the Coroner The duty of confidentiality continues after a patient s death. However, if the circumstances of the death require it to be reported to be the Coroner, the Trust has a duty to co-operate with the Coroner s investigation and must disclose information relating to the deceased s medical history and treatment. See LPT Practice guidance for supporting staff preparation and appearance as witnesses within Coroner s Inquests. 4.4 In the Public Interest Disclosure of confidential information may be justified without the patient s consent if the benefits to society or an individual outweigh the patient s interests in keeping information confidential. This may arise if the failure to disclose information may expose the patient or others to a serious risk of harm, or will assist in the prevention or detection of a crime, the nature of which, the public interest prevails over a patient s right to confidentiality. This is a matter of judgement and the balance, must be carefully considered. The requesting party should confirm that without the information requested, the detection or prevention of serious crime or harm will be adversely delayed or prejudiced, and that the information is not available from another source. The patient should be told that information is to be, or has been disclosed, except where to do so would undermine the purpose of disclosure. This may arise if the patient is suspected of involvement in, or the commission of, a serious crime and to alert them may prejudice the police investigation. Disclosure must be limited to information which is relevant to the facts justifying disclosure, for example it might be appropriate to disclose only the patient s identity. 4.5 In the Patient s Best Interest This includes, but is not limited to, the following situations: Vulnerable Adults If there is a suspicion that a vulnerable adult is the victim of physical, sexual or emotional abuse, and the patient cannot or will not consent to disclosure of information pertaining to the abuse, staff are required to provide relevant information promptly to an appropriate responsible person or agency if it is believed that disclosure is in the patient s best interests. This may be a duty social worker, the Trust Lead for Safeguarding Adults, the police or relevant domestic violence service. Page 10

12 The patient should be informed that there is a concern for their wellbeing and/or safety and that is the reason why their consent to disclosure has been requested. If it is suspected that the patient will not consent due to fears about possible repercussions (e.g from a carer), steps must be taken to ensure the patient s immediate safety and consideration given to notifying the appropriate person(s) and or body. A decision not to disclose information in these circumstances may need to be justified in the Court or to a professional body in the event that the patient suffers further harm as a result of the failure to disclose Minors If a patient is under 16 years of age, consent for disclosure of information can be given by a person with parental responsibility as defined by Section 3 of the Children Act 1989:- All the rights and duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property Rights and responsibilities include:- Safeguarding and promoting a child s health, development and welfare Financially supporting the child Providing direction and guidance to the child Maintaining direct and regular contact with the child Acting representative until the child is 16, if required Ensuring that the child is suitably educated Who has parental responsibility? Married parents Married parents each have parental responsibility for their child. They share parental responsibility jointly, but can exercise it independently. Adoptive parents following an Adoption Order. Unmarried mothers When parents are not married, the mother will automatically have parental responsibility, whether or not she is living with the child s father Unmarried fathers When parents are not married, the father does not automatically have parental responsibility even if he is living with the child s mother. He can acquire parental responsibility if: o He has a parental responsibility agreement with the mother o He has acquired it through a Parental Responsibility Order from the Court o He and the child s mother marry o The child was born after 1 st December 2003 and he is named on the child s birth certificate. A child s birth mother will always have and retain parental responsibility unless the child has been legally adopted. Page 11

13 Difficulties may arise if the person or persons with parental responsibility are suspected of abuse and they will not consent to disclosure of information, or where alerting those persons to concerns about the child s well being may hinder a subsequent child protection investigation. Refer to Local Safeguarding Children Board Procedures and Practice Guidance at Patients between the ages of 16 and 18 may consent to disclosure of information, or consent may be given by a person with parental responsibility. Ideally, the consent of both should be obtained, unless the child expresses a wish that his or her parent/guardian should not be informed. 5. The Rights and Powers of the Police Information will only be released to the Police in the following circumstances:- For the prevention and detection of crime or in a life or death /emergency situation If the alleged crime constitutes a serious arrestable offence under the Police and Criminal Evidence Act If information has been received relating to terrorism Where the provisions of Section 172 Road Traffic Act 1998 apply; (basic demographic information only i.e. no clinical details) to establish the driver of a vehicle where the driver is alleged to have committed an offence Or if one of the following apply:- A public moral duty to furnish certain information about a patient to the police over-rides the duty of confidentiality i.e. there is sufficient public interest justification to release it A member of staff exercising their own civil responsibility notifies the police that an incident has taken place that involves a patient Where it is evident that they, their colleagues and/or members of the public may be at future risk and that involving the police is appropriate Information will not be released unless:- A Section 29(3) enquiry form (Data Protection Act, 1998) has been completed, signed and submitted to the practitioner by the investigating police officer Proof of Identity (e.g. warrant card) is established (non-uniformed officers) Information must not be disclosed if the officer is unable to produce identification. If there is a suspicion that the person making the request is not a Police Officer or legitimate civilian employee of the police this must be reported to the relevant LPT manager and the police informed immediately. Information provided should be limited to that which is necessary, relevant and proportionate. It should clearly identify the data subject (Patient/service user) and include details of professional involvement such as any injury/special medical considerations. Where professional involvement is sustained over a period of time a chronology or list of significant events may be appended. Page 12

14 5.1 Access to Health Records In normal circumstances, health records must not be shown or given to the Police without the written consent of the patient unless one of the exceptions detailed in Section 5 is satisfied. However, Section of the Police and Criminal Evidence Act 1984, permits a police officer to seize anything which he has reasonable grounds to believe is stolen or is evidence relating to an offence and it is necessary to take it in order to prevent it from being concealed, lost, damaged, altered or destroyed. This includes the original medical records. The request must be made in writing and an itemised receipt obtained. This must be signed by the officer taking possession of the records. In all cases where Police wish to take possession of medical records the Records Transformation & Information Governance Manager (or senior manager out of hours) must be informed. A copy of the records must be taken before the original documents are seized. This copy must be retained within the Trust. 6. Requests from Private Law Firms/Solicitors It is increasingly common for practitioners to be approached to provide information to solicitors. It is necessary to clarify at the outset whether information is required by the Local Authority e.g. as part of care proceedings or by a private solicitor. This information is vital in determining the appropriate response to the request. Solicitors should request information in writing. The request should be made on headed paper that identifies the agency or law firm and must state clearly the nature of the court proceedings, who they are acting on behalf of and the purpose for which the information will be used. Practitioners DO NOT provide information in private law cases in the family courts unless the court has requested this by Court Order. A copy of any such Order must then accompany the request. The court may appoint an officer of CAFCASS to compile reports in private family law cases (e.g. application for Residence Order, Contact Order). It is important to identify whether information is required by order of the judge, if so a copy of the order must be made available with a written information request. Original health records MUST NOT be sent to solicitors. Third party information contained within health records cannot be released. Solicitors have no greater right of access to information than is applicable to their client. If in doubt take advice from a line manager, named nurse or contact information governance for advice. Page 13

15 7. Duties within the Organisation 7.1 The Employee When a request for a statement or report is received the employee will notify the line manager immediately. If the request concerns a child the Named Nurse Safeguarding Children must also be informed. Medical staff should contact the Named Doctor. If the request concerns an adult in need of safeguarding/vulnerable adult the Named Nurse Safeguarding Adults should be informed. The request for a statement or report must be made in writing, irrespective of the source of the request. If the request is made verbally the employee must ask for this to be confirmed in writing. See Sections 3 and 4 for the importance of correctly establishing the request is both appropriate and lawful. 7.2 The Line Manager On being notified of a request the manager will determine the legitimacy of the request. This will involve consideration of:- Evidence of valid consent by the data subject (or person with parental responsibility) Evidence of a relevant court order or direction Is the disclosure otherwise justified i.e. in the public interest? Any doubt or concern as to legitimacy must be clarified before disclosure and should be referred to the Records Transformation and Information Governance Manager in the first instance. When the request relates to a safeguarding issue the Manager should liaise with the relevant Named Safeguarding Professional (children or adults) at the earliest opportunity. The Line Manager will ensure that a copy of the written request, accompanied by any evidence of consent or the relevant court order, is forwarded to the office of the Records Transformation and Information Governance Manager. Correspondents must be sent by secure only to lpt-sarrequests@leicspart.nhs.uk A copy of the written request should be retained in the subject/s clinical record as evidence of the grounds on which the information was lawfully and legitimately disclosed. The completed report is not retained in the record until proceedings are complete (see Section 8.3.2). The Line Manager will support the employee by ensuring they are released from normal duties to undertake the report and will ensure that the individual is supported throughout the process. The Line manager will ensure the employee has access to court preparation and support in the event they are called as a witness. Page 14

16 7.3 Named Safeguarding Professionals Where the case relates to a safeguarding issue for either a child or adult in need of safeguarding the Named Safeguarding Professional will review the case to ensure all relevant information held by the organisation is made available, fully considered and disclosed as appropriate in accordance with information sharing principles. The Named Safeguarding Professional will either:- Support the employee to undertake the police statement or written report, or Negotiate with colleagues to identify a named manager of sufficient seniority and knowledge to undertake the support role. This is often the practitioner s team leader who is able to offer both professional and workload support. The Named Safeguarding Professional/Named manager should be aware that some legal cases may be of interest to the public and media. Where media interest can reasonably be anticipated the Communications Team should be alerted at the earliest possible stage. The Named Safeguarding Professional/ Named Manager will consider whether it is necessary to gain the opinion of other professionals prior to submission. This may include practitioners with specialist knowledge or expertise e.g Trust Solicitor. The Named Safeguarding Professional/Named manager with best knowledge of the case will, wherever possible, strive to support the staff member throughout the complete process to ensure consistency of approach. The Named Safeguarding Professional/Named Manager will check the completed report prior to submission to ensure:- Accuracy Clear presentation of the factual information and supporting evidence, particularly where this provides the basis for professional opinion or exercise of professional judgement. Clear identification of key issues or themes Clarity of language That the final document contains the information that was requested and is therefore fit for purpose. 8. Writing the Statement or Report 8.1 Guiding Principles Good statements or reports may take longer than anticipated. Be realistic and negotiate with the Line Manager to ensure sufficient protected time to complete the work. The statement or report should include details of professional qualifications, job role and relevant experience. Page 15

17 Be clear what information is being asked for and the purpose for which it will be used. The information that is shared must be relevant and proportionate to the case under consideration. This will ensure that the disclosure is in accordance with data sharing principles. Where specific information has been requested this evidence will form the bulk of the body of the report. There must be documented evidence within the record to support your analysis and the actions that stem from it. It is acceptable to state a view or opinion, but this must be traceable to the evidence in the report on which your professional judgement is founded. For example, if the practitioner believes a child to be subject to persistent neglect it is not enough to state the view. The practitioner must include description of the evidence on which that judgement is based. Avoid giving opinions, or forming judgements that cannot be supported by reference to objective or empirical evidence. The purpose of the report or statement is to establish the known facts and support the court or others to reach sound judgements. It is not the role of the health employee to advocate for a particular party or outcome. For this reason the report writer should not elaborate, exaggerate or speculate. An expert witness is someone who has specialist knowledge in a particular field; qualifying him/ she to give an opinion on the conclusions that may reasonably be drawn from the facts. Most health workers provide information as professional witnesses and are not considered experts. Do not comment on matters out of your particular area of professional knowledge or competence. Hearsay, e.g. reporting what is said by another person, is admissible in child care (public law) or family law proceedings; however, it must be clear in the statement that it is hearsay evidence. Hearsay is not admissible in criminal proceedings. 8.2 Police Statements The following is adapted from Section of the LPT Safeguarding Children Practice Guidance. Although that document relates specifically to children the principles apply equally in cases related to adults. Whilst it is important to foster good relations with the police they do not have open or unlimited access to health records or other health information. The police can only access health information with the subject s consent, or without the subject s consent in connection with serious crime. See Sections 3 and 4. If a police officer makes direct contact with a practitioner that practitioner should inform their line manager immediately. Information should not be disclosed, either verbally or in writing, until the manager is satisfied that disclosure will be appropriate and lawful. The practitioner is entitled to ask the police officer for sufficient time to contact an appropriate manager as a statement is unlikely to be needed as a matter of urgency. Page 16

18 It is important in all cases to establish:- What information is being asked for i.e. relevant, proportionate Why it is needed e.g. prevention or investigation of a serious crime What it will be used for and by whom e.g. evidence for prosecution of a serious crime Requests for formal statements must be accompanied by either:- the client/data subject s written consent or A completed copy of the Leicestershire Police form Request for personal data to assist with enquiries or equivalent. Staff should be supported by a Named Safeguarding Professional or line manager during the giving of a statement, however, the manager cannot frame or influence the evidence given by the interviewee. The manager is able to help interviewee reflect and debrief on the experience after the statement has been completed. Police statements are usually written out by the interviewing officer based on the practitioner s verbal account. Appendix 1 is not used for police statements. The information given in the statement must correspond to the written record. If describing a recollection that was not recorded at the time this must be made clear in the text. When giving a statement the practitioner MUST: Read the draft statement thoroughly and make any necessary amendments before signing. Sign the statement when they have checked its contents Request a copy of the statement (request may not always be granted) If a copy is given, the line manager or named safeguarding professional will retain the statement in a secure place. Shortly before the trial date the statement can be made available to the practitioner to be re-read as an aide-memoir. It should not be continuously re-read or memorised. 8.3 Court Reports Use of the template and required formatting. A court report template is included as Appendix 1. This is to be used in all instances. The Appendix 1 template includes some prompts or examples of what should be included. The following is a useful aide memoire of what may need to be included (although the exact content will vary according to the professional s role and the focus of the case). The data subject s unique identifier/s i.e. name, address, date of birth, NHS number. Page 17

19 The writer s name, job title, professional qualification/s, place of employment, biography of relevant professional experience. How long the patient has been known to the writer and/or been under the care of the Trust. A chronological account of the writer/service s involvement with the patient. There must be clear distinction of what is stated as fact and what is based on opinion. Professional opinion should be based on factual information within the record, clinical knowledge or research evidence. Personal opinion or speculation is not appropriate in written reports or evidence given in person. Any relevant medical history. Medical terminology must be explained in language likely to be understood by the layman. Signature and date of completion. Reports must be: Page numbered 1.5 spaced Have clear margins to both sides All paragraphs should be numbered. Written in the first person i.e. I saw, I noted, I heard Report front sheets are attached as Appendices 3 and 4. Please ensure the correct sheet is attached to the final report before submission. If in doubt at any stage of the drafting process advice can be obtained from a Line Manager or (in safeguarding cases) a Named Safeguarding Professional for children or adults Submission of Completed Report Before the report is submitted it must be proof read by the practitioner and relevant clinical manager or safeguarding professional. The report must be:- Signed by the practitioner Dated Have the relevant front sheet attached (See Appendices 2,3 and 4) The completed report should be sent to the requesting solicitor by:- Royal Mail Special Delivery or, Delivered in person and a receipt obtained. A copy is to be retained (see 8.3.3) Storage and Archiving A copy of any court report or witness statement should only be kept as a permanent part of the patient s records if it is of relevance to his / her on-going clinical care. Page 18

20 The report is not to be entered onto the patient s clinical record (electronic or paper) until proceedings are completed. The report of an individual practitioner should not be available to other professionals through a shared record e.g SystmOne as there is a possibility it may influence evidence to be given by those other professionals who may also be called as witnesses. Professional witnesses are given opportunity to familiarise themselves with the statement. This is usually in the 24 hours preceding attendance. Witnesses should not attempt to rehearse or memorise their evidence. For this reason and for reasons of security the employee is not provided with a personal copy. In the case of Police statements the officer may provide a copy, but is not obliged to do so. If a copy is given it will be retained in a secure place by the Line Manager or Named Professional for use in the event of being called to give evidence in court. The copy of the court report must be stored by the Line Manager or Named Professional in a secure location identified for the purpose e.g. labelled section of filing cabinet, secure folder on shared drive. This is in order to facilitate prompt retrieval when needed. It is the responsibility of the supervising manager or Named Professional to inform the LPT Records Transformation and Information Governance Manager when the completed report is submitted and the location of the stored copy. At the conclusion of the legal process the statement or report should scanned into the relevant patient record 9.0 Evidence in Person 9.1 Introduction The practitioner should notify the line manager immediately on receipt of a request to attend court. This will allow the manager to consider workload cover and address preparation and support for the staff member. Practitioners are reminded that in addition to support from the manager they can also access confidential support from Amica which provides staff counselling and psychological support services. Amica can be contacted on If a potential date for the hearing is given it should be reserved until confirmation is received. Page 19

21 9.2 Preparation Court preparation is available. The practitioner should discuss this with the line manager in the first instance. If the case relates to a safeguarding issue court preparation and support may be provided by a member of the Safeguarding Team for children or adults. The practitioner should be aware that court preparation cannot include coaching or the rehearsal of answers to particular questions, but it will enable you to feel more confident and know what to expect of the experience. A well prepared, clear and comprehensive statement may reduce the need to be called to give evidence in person. Although written reports can be lengthy and time consuming it is well worth producing a good quality written report in the first instance. A written report that is evidence based and unambiguous in its language reduces the likelihood of being questioned in person. In most instances the practitioner giving evidence is accompanied by a manager or other experienced colleague at the court. This is to provide support and the opportunity to talk through the experience after evidence has been given. Read and familiarise yourself with the clinical records and any written statement. It is helpful to bookmark key entries for ease of reference on the day. Ensure paper records or printouts of electronic records are well ordered and securely fastened together. Small things like this add to the impression of professional competence and allow the witness to feel calm and more confident. Give thought to your appearance. Witnesses are often advised to dress as they would for an interview. Be aware you may be giving evidence for some time so consider personal comfort as this can help focus and concentration. 9.3 The Process of Giving Evidence Arrive in enough time not to feel rushed or flustered. Be prepared for a long wait. It s usual to feel anxious. Take along a book, crossword etc. to keep you occupied. When called to give evidence take your place and face the judge, not legal counsel. Do not sit unless invited to do so. You may be asked to swear an oath or affirm. Ask the court s (judges) permission before referring to records. Answer only what is asked by legal counsel. Do not volunteer extra information or elaborate unless asked to do so. Page 20

22 You will give evidence in chief to the counsel who called you as a witness. This is generally friendly questioning designed to bring out what you know and what they believe will support their argument. Cross examination will follow by the opposing counsel. Direct your answers to the judge. If there is a jury you will need to address both the judge and jury. It is helpful to move your feet so you are facing the person or people you need to address. If necessary ask for clarification or time to consider. Do not be rushed into an answer. The court needs the best information you can give so try not to be rushed or flustered. Stay with fact. It is acceptable to say you don t know or don t want to speculate. Never leave a question unanswered. The court may make assumptions about what was unsaid. Do not leave the witness box until released by the judge. After giving evidence consider whether you need to de-brief with a manager, supervisor or supportive colleague. Most professionals are anxious about the experience and it is usually helpful to talk through the outcome, how you did and how you are feeling. 10. Monitoring Compliance and Effectiveness The monitoring/audit of requests for information sharing for legal purposes will be done in accordance with that for other subject access requests received by the organisation. 11. Due Regard This policy has been screened in relation to paying due regard to the Public Sector Equality Duty of the Equality Act 2010 to eliminate unlawful discrimination, harassment, victimisation; advance equality of opportunity and foster good relations. This is evidenced by ensuring all staff implementing this policy will have received appropriate training including equality diversity and human rights awareness. Patients and Carers will have access to relevant interpretation and translation services to maximise accessibility. For example information will be provided in an appropriate format including large print, Braille, alternative language etc. Refer to the Trust Interpretation and Translation Service on the intranet together with the Equality Diversity and Human Rights Policy. Page 21

23 Equality monitoring of all patients by relevant protected characteristic/s will be undertaken in order to ensure no equality group/s are disadvantaged directly or indirectly as a result of implementing this policy. 12. References, Related Documents and Recommended Reading LPT Safeguarding Children Practice Guidance. LPT Guidance for Dealing with the Police and Other Public Bodies. LPT Information Sharing Policy. LPT Practice guidance for supporting staff preparation and appearance as witnesses within Coroner s Inquests. Information Sharing: Guidance for practitioners and managers. (HMG, 2008). Page 22

24 Appendix 1 - Template for Main Body of Report Note: Text in red is included for guidance and should be deleted from the completed report. Context of the Report who has asked for this report and why, what is the report writer s professional involvement with the case, how long has that involvement been for Chronology of relevant contacts and significant events Content should be based on what is contained in the record. Content should address any specific information requested by the court List the pattern of contacts in chronological order. Suggested format for each entry: Date of contact Age of child/ren if seen Where took place Who present Reason for contact Description of what happened Include relevant telephone calls, test results, clinical findings and failed/missed contacts Summary This should include an analysis of strengths and risk within the family organised under the 3 domains of the assessment framework Analysis and professional opinion must be supported by the information/evidence contained within the chronology. Developmental needs / adult health needs: Parenting capacity Family and environmental factors Declaration To be completed in all cases I declare that the information given is true to the best of my knowledge and belief, and understand that it will be placed before the Court and used as evidence. Signed. Dated.. Page 23

25 Appendix 2 Front sheet All reports for submission to Leicester City Council Legal Services Department BETWEEN: Name... 1 st Statement Filed... Dated.. Filed on behalf of Applicant.. Case No Leicester City Council and. and. (Through Children s Guardian) Applicant 1 st Respondent 2 nd Respondent 3 rd Respondent STATEMENT OF (insert full name) 1. I, (full name) of (professional address) make this statement to provide the Court with information regarding my involvement with the child(ren) named above. 2. I am a (job title) and have worked as such for (employer) since (date). My qualifications are (insert relevant academic and professional qualifications). 3. The information contained within this statement is based on my direct involvement with the child(ren), consideration of records and liaison with other agencies involved with the child(ren). Page 24

26 Appendix 3 - Front sheet - All reports for submission to Leicestershire County Council Legal Services Department IN THE LEICESTER (e.g. County, Family Proceedings) COURT Case No:.. IN THE MATTER OF THE CHILDREN ACT 1989 AND IN THE MATTER OF (insert subjects name and DOB) BETWEEN: LEICESTERSHIRE COUNTY COUNCIL and. and Applicant First Respondent Second Respondent. Third Respondent I, (insert full name) will say as follows: STATEMENT OF (insert full name) Page 25

27 Appendix 4 Front sheet To be used in all cases where Appendix 2 and 3 do not apply including Rutland cases STATEMENT TO THE COURT Statement of: [insert name] Date compiled: [date of completion] Case Number: [taken from request or Judge s Directions] In the matter of: [taken from request or Judge s Directions] Subject: [use full name in all cases] Date of birth: Subject: Date of birth: Subject: Date of birth: Family Address: [for children or adults in confidential placements e.g. foster care, refuges enter Confidential address ]. Professional Profile Full Name: Job title: Professional Address: [not home address] Professional Qualifications: [enter in date order earliest to latest]. Professional Experience: [e.g. I am employed by Leicestershire Partnership Trust. I qualified as (profession) in (month/ year of qualification). I worked as a (job title and brief details of experience). I have worked in this post/role for (months/ years)]. Page 26