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Short Notes on Evidence Gathering 2018 - Dr Mark Burgin

13/03/18. Dr. Mark Burgin BM BCh (oxon) MRCGP considers the elements that should be included in a primer for clinical negligence cases where evidence gathering is an issue.

The purpose of this primer is to help lawyers to be aware of when additional evidence will be required and the special processes used to obtain this evidence.

Health care professionals are aware of their duty to keep their records confidential and often feel conflicted by a request to disclose potentially sensitive material.

Lawyers should have this conflict in mind when making requests and be open about the reasons for asking for information even if this approach reveals their position.

A doctor given the reasons who then fails to not only reply to questions but also to disclose what further questions should be asked faces censure from both the CQC and the GMC.

The Duty of Candour

There is a moral duty to be candid for professional that is expressed in the GMC and NMC guidance but the advice now goes further. (1) (2)

The professional should cooperate with formal investigations and must give all relevant information, which means that failing to be fully honest is a disciplinary issue.

The duty of candour is based upon CQC legislation and gives all health care professions a duty to provide an account about the incident and what further questions should be asked. (3)

Under the duty of candour any doctor that fails to provide all the facts and what further enquiries into the incident they believe are appropriate risks prosecution by the CQC.

Duty of candour requests are the most appropriate way to determine usual practice from a professional who is unlikely to be involved when the case involves serious harm.

Handwritten records

Although nursing records comprise most handwritten records in the NHS there are other records which may be material for instance inpatient hospital records or referral letters.

Once handwritten records have been identified as material it is essential that they are transcribed and ideally the transcription is checked by the author of the records. (5)

All professionals have a responsibility to write legibly, sign and date the record but where there are multiple authors transcription is a practical alternative.

There are three reasons for this expensive and time consuming process, first handwritten records are slow to read increasing costs, second the handwritten records are not machine searchable and thirdly there may be dispute as to what the records say. (6)

Experts who do not have access to transcriptions are forced to either charge for transcribing the relevant entries at their hourly rate or copy an image of the entry into their report for the reader to interpret.

Psychological records

Counselling records are often destroyed after counselling finishes and the expert may have to rely upon an end of therapy summary.

Psychological practitioners need to have an independent memory of the claimant to do their work and they will remember the problems that were addressed.

This memory is likely to be prompted by reading the therapy summary or seeing the claimant again so the lawyer may be able to ask reasonable questions of the therapist.

If the end of therapy summary does not contain what symptoms the patient had (stress, low mood, anxiety) the thoughts that were associated with the symptoms (conflict, loss or fear) and the losses (personal, social or work) then it is reasonable to return to the therapist to fill in the gaps.

Redacted records are better than no records so if there are significant third party references then an increased fee may be expected to comply with the information commissioner’s regulations.


The information commissioner’s website supports those using the Data Protection Act 1998 with letters that can be adapted to deal with tardy responses. (3)

Disclosure in psychological cases can be improved by reference to professional obligations and asking questions about the three significant areas (symptoms thoughts and losses).

The duty of candour provides a legal framework when fact finding and is a better alternative than referring the practitioner to their professional body.

Handwritten records will remain a challenge for the foreseeable future and transcription will remain a necessary cost to include in the budget for a case.

The primer in evidence gathering will bring together the experience, knowledge and skills of those in the medicolegal field to ensure best practice.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website

  • NMC 2015 The Code for nurses and midwives

  • GMC 2013 Good Medical Practice

  • The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 No. 2936

  • The Information Commissioner

  • Burgin 2016 How to Analyse Clinical records

  • Burgin 2016 Unsticking the Stuck Clinical Negligence Case

  • Burgin 2016 How to Document a Biopsychosocial Assessment in Personal Injury

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