Factual evidence: Is it a level playing field?

The recent case of FB
v Rana and Princess Alexandra Hospital NHS Trust [2015] EWHC 1536 (Admin) highlights the difficulties facing parties, and the court, when there is a dispute of fact between a lay witness and a professional witness giving factual evidence.

As in many clinical negligence cases, in FB the dispute was between family members and the treating doctors. Although the doctors were giving evidence as witnesses of fact, they were, of course, also professionals with medical experience and expertise, and a contemporary written account backing up their evidence in the form of medical notes.

The case arose from the alleged delay in the diagnosis and treatment of FB’s meningitis. There was a dispute between
the claimant’s family and the defendant GP and hospital doctor about FB’s reported history, condition when she was seen, and the advice given by
the doctors.

In his judgment Mr Justice Jay rejected the family’s evidence, finding aspects of it ‘unduly partisan’ and containing ‘significant elements of retrospective reconstruction
and exaggeration’, some of which may have been ‘inadvertent’.

On the other hand, although the doctors could not fully recall the events and relied on their notes, the judge preferred their evidence, accepting the contemporaneous notes
made at the time as accurate.

Imbalance of power

This raises a question about the weight given to factual evidence according to the type of evidence and the witness giving it.

Jay J said: ‘I do not start from the position that the weight to be given to any particular category of evidence should be greater than another.’

However, there is inevitably
an imbalance of power (and documentary evidence) between a professional and a lay witness, which, it seems, leads to the professional’s evidence often being given more weight.

A review of clinical negligence cases where there was a factual dispute between the patient or
a family member and a medical professional reveals that Jay J
is not the only judge to favour a medical professional’s evidence above a claimant’s factual evidence.

Of course, the burden of proof is on the claimant, but other issues seem to be at play here.

Professionals such as doctors are, it seems, still trusted almost implicitly; their professionalism elicits a greater belief in their honesty.

A professional also often has the benefit of referring a judge
to contemporaneous records, such as medical notes. Even when those notes are poor (as in FB),
it seems it is hard for a judge to find they are not accurate, go behind them, or take anything from their poor quality.

As Jay J said: ‘In my view
a barely adequate or even inadequate note does not necessarily march arm in arm with a barely adequate or inadequate examination.’

That may not be surprising,
but his comments on the need to analyse the accuracy of the notes are more so: ‘In my judgment it is wrong to subject these quite scanty notes to over rigorous logical scrutiny.’ This comment seems to suggest that if there is contemporaneous written evidence, it will be taken as fact.

Manipulated evidence

So, the question arises of whether a lay witness’s evidence will ever be treated equally to that of a professional witness.
To achieve justice, it must be.

For the lay witness, and for those of us acting for them, there are some truths that the court may need to be persuaded to accept.

Professionals are only human. Their memories fade and are fallible; they can be prone
to rewriting history and exaggeration, just as a lay witness can.

The sad fact is professionals do not always tell the truth and their evidence can be manipulated for their own purposes, just as a lay witness’s evidence can. In the clinical negligence field, that truth was brought sharply into focus recently in the findings of the Kirkup inquiry into the unnecessary deaths at Morecambe Bay Hospital. Kirkup reported that he found ‘collusion’ among NHS Trust staff and clear proof of ‘inappropriate distortion’ of evidence in the preparation for an inquest, with the circulation of what the inquiry ‘could only describe as model answers’.

Written evidence is not unassailable. Records can be inaccurate, self-serving, retrospective, and altered subsequently. To ensure that
the appropriate weight is given to each piece of evidence, records do need to be analysed carefully for inconsistencies, retrospectivity, and plain alteration.

The lay witness would
benefit from following the professional’s approach
and keeping their own contemporaneous notes of events. While often at the time of the events giving rise to the claim they may not know they are going to need a record later, with the ability to record, photograph, and video with
a mobile phone, it may be
that savvy lay witnesses will themselves be able to produce their own contemporaneous evidence.

Maybe that is what it will take to level the playing field. SJ

Nicola Wainwright is a partner at Leigh Day