WITNESS STATEMENTS: THE IMPORTANCE OF THAT “FIRST DRAFT”

If you think “first drafts” of witness statements are not that important it is worthwhile having a look at the judgment of Mrs Justice Whipple in PPX v Aulakh [2019] EWHC 717 (QB). It is also an example of a judge having to decide issues relying primarily (but not wholly) on written evidence. 

THE CASE

The claimant brought an action against his former GP. He alleged that she should have noted, in a consultation, that he was suicidal and taken steps to refer him for appropriate treatment. Four weeks after the consultation he attempted suicide and was left with serious injury.

THE ISSUE

The unusual aspect of this case was that the case rested on a single consultation yet neither of the parties present gave evidence about it. The claimant was too disabled, the defendant too was unable to give evidence for medical reasons.

THE SIGNIFICANCE OF THE DRAFT STATEMENT

The claimant had served a witness statement drafted in 2018. However there were issues in relation to her capacity at the time that statement was signed. The defendant obtained permission to rely on an earlier statement, made in 2014.

 
“Mr Levy QC and Miss Begley, for the Claimant, did not dispute Dr Kennedy’s evidence but they resisted the application because they said that there was reason to believe that the Defendant was already suffering cognitive deficit in April 2018 when that witness statement was signed, and thus there was reason to doubt the reliability of that statement, so that admission of the statement as hearsay should be refused under s 5(1) of the 1995 Act. In response to this line of argument, the Defendant’s solicitors disclosed an earlier witness statement from the Defendant, signed by her on 23 July 2014, at a time when all agree she was cognitively unimpaired. The Defendant waived litigation privilege in the 2014 witness statement, which was in effect an earlier draft of her 2018 witness statement. Mr Pittaway invited me to admit both statements as hearsay.
  1. The statements were materially similar in important ways (and contained some material differences too). I ruled that both signed statements should be admitted as hearsay evidence, on the basis that the weight to be accorded to that evidence would be a matter for submissions in due course, pursuant to s 4 of the 1995 Act. In light of the production of the 2014 statement, the Claimant’s objections became groundless.
  2. Accordingly, this trial proceeded in a rather unusual way, because neither of the people who were present at the key consultation on 25 April 2012 gave evidence at trial. I was, however, assisted by evidence about surrounding facts and circumstances from the following lay witnesses: for the Claimant, his two brothers and his mother (her evidence was not disputed and so was read); and for the Defendant, the Claimant’s ex-wife.
THE JUDGE’S ASSESSMENT OF THE WITNESS EVIDENCE
  1. I turn next to the Defendant’s own evidence. In her 2018 statement, she explains her standard practice when dealing with a patient expressing suicidal thoughts (paragraphs 28 and 30). She says she discusses these thoughts very carefully to establish if there is any chance they might be acted on; she would ask about the exact nature of the thoughts, the method of suicide visualised, when the thoughts started, how often they occurred and whether there had been any urge to act on them in the past or sense that they might be acted on in future; she would also ask about “protective factors” which are reasons to prevent a person from acting on those thoughts. She says that she routinely sees patients expressing suicidal thoughts and if concerned that a patient might act on them, she would immediately telephone the CMHT to arrange for further intervention. There are two important points to make about these passages:
  2. It therefore seems very likely that the Defendant is here explaining, truthfully and coherently, how she would deal with a patient who expresses suicidal thoughts. If she had been tendered for cross-examination, it is unlikely that she would have been challenged on this part of her evidence, because it reflects the agreed position.
  3. The Defendant gives an account of the consultation on 25 April 2012 in her 2018 statement (paragraphs 67-71). She states that she would have questioned him carefully about the thoughts that he was expressing. As to her findings, she says that “there was no planning element to the thoughts and … the thoughts were not current” and that he had thoughts of the future, about his daughter and ex-wife. From their discussion, the Defendant says she “did not believe the suicidal thoughts to be ongoing” and “did not consider that there was any risk of the Claimant acting on them”. He was not anxious or distressed during the consultation and gave her no cause for concern. Her treatment plan was to increase his venlafaxine (anti-depressant) and plan to see him in a month, but she told him to return to her as necessary before then; she also suggested he sought support from the Samaritans.
  4. This evidence substantially replicates similar passages in the earlier 2014 witness statement (paragraph 67). There are differences between the two statements but importantly, in that earlier statement, the Defendant states that she “would have questioned him very carefully about his thoughts to assess the likelihood of him acting on them”, and she concluded after questioning that his thoughts were “not current” and that he was not at risk of self-harm.
  5. The weight to be given to these statements is in issue and my conclusion on that issue is guided by the factors at s 4 of the 1995 Act. For reasons given, the Defendant could not be called to give evidence at trial. The 2014 witness statement was made relatively close to the events in dispute (around 2 years later); I was told that that statement pre-dated the Letter of Claim in this case and thus was composed before the Defendant knew how the Claimant would put his case. That is at least one explanation for the greater detail appearing in the later statement. Apart from defending herself against future proceedings, the Defendant had no reason to lie or conceal events in either statement. In my judgment, the evidence should certainly carry some weight with the Court: it is important evidence, and there is no obvious reason for me to conclude that it is unreliable or should be disregarded. For present purposes, I simply note that the Defendant’s explanation of the 25 April 2012 consultation, set out in both of her witness statements, is consistent with what she had stated to be her own standard practice, which practice is accepted by the relevant experts as appropriate, and that her account fits comfortably with the note she entered contemporaneously.