Chapter 9 Advice on Court Proceedings
- Provides information on the Children's Hearings system.
- Gives advice on citations for court.
- Gives advice on precognition statements.
The Children's Hearing System
The Children's Hearing system deals with children who have committed offences or have had offences committed against them or who may be in need of care for other reasons. The Children's Hearing system considers if these children are in need of compulsory measures of supervision.
At various times healthcare staff may be professionally involved in the Children's Hearing system. It is important that healthcare staff are able to fully participate in the Children's Hearing system. They must be confident regarding their responsibilities when such involvement occurs. Healthcare staff should attend hearings, court and all other activities associated with the Children's Hearing system. If healthcare staff are not clear about their role they should discuss with their line manger or Child Protection team.
The Children's Hearing panel which sits to consider a child's case consists of three panel members. The panel members having received reports prior to the Hearing and, having taken account of the information given to them at the Hearing, will decide if the child is in need of compulsory measures of supervision and if so what form these measures should take. Present at the Hearing will usually be the child, relevant persons, the Children's Reporter and professionals involved with the child and family. The child and/or family's legal representative may be present also. The Chair of the Hearing has a duty to ensure that the people present have a legitimate right to be there. While keeping to a strict legal framework the Hearing endeavours to make the proceedings informal.
When a member of healthcare staff receives a request from the Children's Reporter for a report this must be provided and delivered to the Children's Reporter within the time specified as per local guidance.
Citations for Court
On receipt of a witness citation regarding child protection, healthcare staff should immediately inform their line manager. Failure to attend court when cited is a criminal offence and an arrest warrant can be issued for such a failure. If a member of healthcare staff cannot attend they must immediately inform the person who has cited them, this information will be contained in the citation. There are certain circumstances where non-attendance will be accepted, for example, if the person cited is abroad on annual leave or unable to attend due to ill health. However, the person who issued the citation must be informed. Staff who receive citations should always inform the Lead Clinician or child protection adviser in their area. The Lead Clinician or child protection adviser will offer the member of staff advice, guidance and support as required. Citations could be from the reporter or from an agent representing the child or relevant person. This could be in relation to a proof or an appeal against a children's hearing decision.
A precognition statement is often taken prior to a case being heard in court. Its purpose is to try and establish the evidence in the case. The GMC acknowledges this arrangement that is peculiar to Scots Law where there is limited disclosure of information in advance of a criminal trial, to both the Crown and Defence, without the patient's express consent. There is also the facility to have a witness cited under oath within the provisions of the Criminal Procedure (Scotland) Act 1995 to appear in front of a Sheriff for this purpose. Staff who have received citations for court may be approached by the Children's Reporter, the child's legal representative or the family's legal representative for a statement. Good practice should be seeking advice from the Lead Clinician or child protection adviser when a request is made.
The legal measures for the protection of children and young people at risk are fully explained earlier in this document.
It is the responsibility of the Board to ensure that designated officers oversee, give support and time to staff to undertake the necessary administrative work, prepare detailed reports and to have access to appropriate legal advice.
Other key activities are to:
- Ensure familiarity with local court procedures including the workings of the Children's Reporter, the Sheriff Court and the High Court.
- Ensure that there are opportunities to be precognosed in advance of the court process by a solicitor.
- Attend court to provide support to staff through the evidential process.
- Allow staff the opportunity to discuss their involvement in the case and be offered further clinical supervision following court proceedings.
- Facilitate peer review in a supportive environment.
There is a requirement that the staff involved in child protection have the necessary training, skills and experience in this area of practice where there is compliance with any revalidation requirements of their respective regulatory bodies. This will involve knowledge of relevant quality standards such as those from the Faculty of Forensic and Legal Medicine (FFLM), the ability to produce court reports of the necessary quality and to give effective evidence in court if called upon to do so.
To that end, it may also be beneficial to attend a report writing and courtroom skills course where a number of commercial organisations and the Faculty of Advocates can assist in this respect.
The three medical defence organisations in the UK are able to provide generic advice on giving evidence but as the doctor is giving evidence of fact in their professional capacity or expert evidence, it is not possible for them to be separately represented. It may also be useful to discuss the case with a representative of the Central Legal Office but it is important to bear in mind that an increasing number of doctors have been referred to the GMC in respect to expert evidence and any issues with the regulator will not be covered by NHS indemnity. Consequently, doctors undertaking this work should ensure valid membership of a defence organisation in case they are required to account in this way.
Email: Fiona McKinlay