The Medico Legal Association of Chartered Physiotherapists (MLACP) is a professional network for Chartered Physiotherapists and others who have a special interest in medicolegal work.
An understanding of medicolegal matters is required in all areas of physiotherapy practice and at all stages of career progression. For example, all physiotherapists must understand how key legal concepts such as consent to treatment, confidentiality, duty of care and duty to report affect the way in which they work with patients.
Some physiotherapists will choose to develop particular expertise in medico-legal work and may undertake to write medico-legal reports which can be used for a range of purposes.
Here is more information on the range of work our members may undertake.
The MLACP provides training and support for members starting out on their medico-legal work, and those who have already established their practice.
Expert Witnesses vs Witness of Fact – What kind are you?
A witness of fact is a person who has direct knowledge of a patient and their treatment. Physiotherapists are often asked to be a witness of fact for one of their patients who is involved in a litigation process, even when there is no suggestion the physiotherapist has been negligent. A witness of fact is simply required to provide their records and/or a commentary on those records and cannot decline to co-operate with the request. No specific training is required, and the solicitor or Trust managing the case would be expected to provide appropriate support and information to the physiotherapist involved.
An expert witness is a person who is wholly independent of the patient and has not been involved in providing care or treatment to them. Some physiotherapists who have developed expertise in a given area of practice and the legal process may choose to undertake expert witness work. Expert witnesses can choose to accept a request to provide a report and must have additional education, training and competence in understanding the role and responsibilities of being an expert witness. The solicitor asking for the report will provide the instructions for the work and the documentary evidence from which the expert will create their report.
Types of Expert Report
There are many different types of report that an expert witness may be asked to produce. Each will have their own particular requirements and you must be clear what type of report you are being asked to write to ensure your report complies with the relevant rules.
Short Advice Notes
These may be short letters giving an opinion whether there is merit in pursuing a clinical negligence claim. Solicitors may ask for brief advice from an expert before deciding whether to accept a case, depending on how the case will be funded.
Solicitors may also ask for brief reports at a pre-litigation stage to enable them to write a Letter of Response to a claim. This can be common in NHS work which is managed through the NHS Litigation Authority.
Clinical Negligence Reports
These are independent reports which are used as evidence in cases of alleged clinical negligence. Experts can be instructed either by the claimant or the defendant (or their insurers) or in some cases a Single Joint Expert is appointed to act for both sides.
Clinical negligence reports must meet the requirements of the current Civil Procedure Rules (Part 35). Physiotherapy expert evidence provided for the civil courts is tested to the civil standard of ‘on the balance of probabilities, more likely than not.’
a: Liability reports
In order to establish clinical negligence both breach of duty and causation must be proved. Sometimes separate ‘Breach of Duty’ reports may be requested in order to limit unnecessary costs. This is because if breach of duty of not proven, then establishing causation is not an issue. A liability report will give an opinion on the standard of care provided and whether any failings contributed to causing the alleged harm
b: Condition and Prognosis Reports (Quantum)
These are used to establish the amount of damages that might be awarded if a claim for clinical negligence is successful. For quantum reports, accurate costings are a vital part of the report and may have a significant impact on the amount of any damages awarded to a successful claimant. Physiotherapy quantum reports typically involve a consideration of past, current and future physiotherapy costs, equipment costs and other costs that may be associated with helping the claimant achieve a lifestyle as close to their pre-injury life as possible. Your report needs to consider all of these elements factored in for the normal expected life time of the patient.
Physiotherapy Needs Reports
These are independent reports that may be used for ensuring the needs of vulnerable adults and children are met as part of health, social service or educational provision. The nature of the report may vary depending on what purpose it is to be used for. They may be requested by a solicitor, or can be commissioned by parents of children with special educational needs, or advocates for vulnerable adults.
These reports should provide a clear physiotherapy assessment and diagnosis so that it can be clearly seen on what basis your recommendations are made. Physiotherapy needs reports should clearly state current and future physiotherapy needs including equipment and include costs for the length of time required.
Whiplash claims commonly come from motor vehicle collisions. These claims are often low value, and many claims have been found to be fraudulent. The Ministry of Justice has recently reviewed how whiplash compensation claims are managed.
All whiplash claims are now managed through a central portal run by the not-for-profit company MedCo. All physiotherapists who wish to write whiplash reports must be accredited with MedCo either as an independent expert or as part of a larger medical reporting company. There are new rules in place for the fees paid for this type of report and how claims are managed.
Physiotherapy reports can be used in Tribunal settings such as Employment Tribunals or Regulatory Tribunals such as fitness to practice hearings held by The Health and Care Professions Council (HCPC). You must be clear whether you are providing your report as a Witness of Fact e.g. to support your patient in their Tribunal hearing, or as an expert witness e.g. to provide evidence to the Tribunal on some aspect of physiotherapy practice and/or needs.
Tribunals are quasi-judicial settings and so you must swear your report is truthful and it can helpful, though not essential, to ensure your report meets the standards of the Civil Procedure Rules (Part 35).
DWP PIP Reports
The Department for Work and Pensions (DWP) provides Personal Independence Payments (PIP) to individuals who have been assessed as having a physical or mental health condition that may mean they are eligible for welfare benefits. A PIP assessor is required to determine a claimant’s functional ability and is not required to suggest, plan or deliver treatment.
The assessment is a standardised form, and a variety of individuals, not just physiotherapists, are eligible to be PIP assessors. The results of the assessment are considered by the DWP and may result in an increase or decrease in benefits payments to individuals. Individuals who are unhappy with the PIP assessor’s decision can appeal directly to the DWP.
Any physiotherapist can choose to undertake this work as part of their practice and these reports are not considered to be medico-legal reports.
Coroner’s Inquest Reports
Physiotherapists may be asked to assist a coroner during an inquest into a person’s death. A coroner’s inquest is a fact finding process to determine who has died, and when, where and how they died. An inquest is not a trial and a coroner will not determine who is to blame for a person’s death but they may make statements about the circumstances of someone’s death, particularly if the coroner believes that some act or omission contributed to the death.
A physiotherapist may be asked to give factual or opinion evidence to an inquest depending on the coroner’s investigation. No specific training is required. You should be clear whether you are being called as a ‘witness’ or as an ‘interested person’.
A ‘witness’ is someone who was linked to the person shortly before their death and may hold relevant information about the circumstances of their death. This is similar to being a ‘witness of fact’. If you are asked to provide ‘witness’ information you should provide your records and/or a commentary on those records, and answer any questions the coroner has. You cannot decline to co-operate with the request, you cannot be legally represented and you are not permitted to ask questions yourself.
An ‘interested person’ is someone who was linked to the person shortly before their death and whose acts or omissions may have caused or contributed to the death. If you are called as an ‘interested person’ you should provide your records and/or a commentary on those records. You cannot decline to co-operate with the coroner and you are entitled to legal representation if you wish, and to ask questions during the process.
Reports for Criminal investigations
These are independent reports which are used as evidence in criminal cases. These reports must meet the requirements of the current Criminal Procedure Rules (Part 35). Physiotherapy expert evidence provided for the criminal courts is tested to the criminal standard of ‘beyond all reasonable doubt.’
An expert physiotherapy report for criminal proceedings may be asked to give an opinion on a range of physiotherapy matters. For example, whether a defendant was capable of committing an alleged crime based on the existence of some physical injury or disability, or whether behaviour that a complaint believes is inappropriate amounting to some form of assault is acceptable professional behaviour.