Richard Lingham offers advice to those appearing before formal inquiries

Published: 02/09/2004, Volume II4, No. 5921 Page

Formal inquiries set up by government ministers are currently the subject of a major review by the Department for Constitutional Affairs. At the same time, the National Patient Safety Agency is considering how independent inquiries could employ root cause analysis to help evidence-based investigation of serious incidents.

In recent years, inquiries have multiplied as an ultimate expression of public accountability.

However, the procedures have never been fully standardised and inquiry panels have varied markedly, from a small team of specialists to very formal quasijudicial, public proceedings chaired by a senior judge.

At whatever level, inquiry findings can hit NHS systems and people hard, so that witnesses may well feel apprehensive when giving evidence and while awaiting the report.However, procedures to compel attendance are infrequently used and are generally regarded as inconsistent with the inquisitorial objective of explaining rather than blaming.

Witnesses should also know that the principles and precedents concerning the taking and use of evidence derive partly from statute and case law - but have to respect every person's rights to natural justice.

All witnesses must be able to raise their own concerns as well as to answer the inquiry panel's questions. This is most readily achieved when their evidence is well prepared.Witnesses can do the inquiry and themselves serious disservice if they are poorly organised, have not familiarised themselves with the inquiry procedure or have not reminded themselves on relevant records, practice policies and operational procedures.

Giving evidence in person at a hearing can be a daunting prospect, but witnesses should remember their performance on the day is not their only chance to state their case. The principles provide five stages relating to evidence taking. These are:

initial written statement;

appearing at a hearing;

correcting a hearing transcript;

subsequent submissions;

response to any criticism in the inquiry's draft report.

The letter calling each witness must include full details of the inquiry's terms of reference and the procedure. If anything is unclear, the inquiry's administrator or clerk should provide additional explanation on request.

The letter is expected to identify the main questions and topics to be covered. Sufficient time must be allowed for the witness to examine practice records and operational policies and to establish their own recall of the situation under scrutiny.

At this stage the witness should exercise their right to choose a person to assist in preparing the written statement and to accompany them to the hearing.

The inquiry panel is responsible for obtaining the necessary consents to the release of personal and other relevant records. Each witness will then have the right to see those parts of any record to which they originally contributed or which have a bearing on their involvement in the situation.

The inquiry's timetable will be set to hear individuals in a sequence with which each witness should try to co-operate, but they should not feel pressured to appear before their evidence has been fully prepared.

Hearings usually take place around a table rather than in the style of a court.

The chair will introduce the panel members and will request the witness and the companion to identify themselves.

Questions will be asked by the chair, or by counsel to the inquiry and panel members, to which only the witness may respond.

The companion to each witness will have no right to speak, but it is allowable to confer on any uncertain matter or to request time to reflect, if necessary in private, before responding.

The chair will indicate when the transcription of evidence has started. The panel's questioning will generally be constructive, not combative, although any witness who is obstructive or appears less than frank may be pressed more firmly.

However, the verbatim transcript will equally reveal any unreasonable pressures of questioning as well as any difficulty for the witness in reply.

A full set of records will be available at the hearing, usually numbered for ease of reference.

If witnesses are asked to comment on a particular record, they may take sufficient time to do so and to reflect on it before responding. If unable to answer, they must be allowed to say so. If a question appears inappropriate, unfair or prejudicial, the witness and companion may confer and advise the chair accordingly.

Once the witness's evidence is finished, the chair will indicate how soon a copy of the transcript will be provided.When it arrives, the witness and companion should take time to read it with care, correct any obvious errors, take a copy for their records and return the amended original to the inquiry clerk.

Once the inquiry's written findings reach their penultimate draft form, there is an obligation to inform each witness in writing of any personally critical finding and to give them a full opportunity to respond.

Since the inquiry has to consider these responses as part of the evidence, it is essential for the witness and their companion to scrutinise those findings, if necessary by re-examining records and policies or by taking further advice.

The witness's subsequent written response should specify every error of fact or misinterpretation of evidence and state why any finding is unjustified or unfair.

The inquiry is expected to take all such representations into account in finalising its report for publication.

It also has a duty, before the report is published, to provide each witness with the final wording of any continuing criticism and must ensure they receive a copy of the full report so that they may see the criticism in full context by the time the report is published. l Richard Lingham was a Mental Health Act commissioner and is an adviser on Department of Health inquiries.

National Patient Safety Agency, root cause analysis toolkit 2003 www. npsa. nhs. uk/rca