Articles and Case Studies

A doctor’s guide to police statements

20 Nov 2019

Julian Walter clover

by Dr Julian Walter

Pencil

You have been asked to provide the police with a statement regarding a patient who attended for review or management of injuries usually following an assault. Your heart sinks, and you wonder where to start.

What is a ‘police statement’?

A police witness statement assists the court in relation to charges against a third party. Usually the court is seeking information about the injuries and recovery prognosis. Your statement will become part of the brief of evidence and various parties may have access including lawyers, police, judge, the accused, and other witnesses as part issues raised at a hearing. You may need to give evidence based on the statement.

This article does not address statements being provided where your conduct is being scrutinized.

In the case of an alleged sexual assault, the statement will generally be limited to discussion of the injuries, not detailing the prior events. Providing an opinion about the mechanism of injury should generally be avoided unless you have relevant expertise, and are specifically requested to provide it.

Requests for police statements

Most police statements follow a set pattern and requests can be dealt with relatively simply. If you are unfamiliar with the process, or have any queries about the process contact MDA National for advice.

The provision of a statement may allow the court to accept your evidence without your attendance in person, but you may still be subpoenaed to give evidence at the trial. A well written statement gives you the best chance of not having to attend court to give evidence.  

Why does the court need your statement?

Criminal charges are based on injury severity. A minor injury may result in lesser charge than a more serious injury, even if they stemmed from the same type of injury mechanism. The court may need to obtain medical evidence directly from a relevant health practitioner, by written statement, and/or by way of evidence given at trial, to determine the relevant charge.

Occasionally you will be asked to provide a statement which focuses on issues indirectly related to the clinical care e.g. because you witnessed a specific conversation or interaction. 

Your role as an expert

You will usually be asked to provide the statement as a treating doctor, as opposed to an independent medical expert who won’t be involved in the treatment of the patient. Your statement will predominantly be factual, based on what you observed. There will likely be some basic opinions to provide (prognosis; consistency of the injuries with the alleged mechanism of injury). Sometimes you will be summarizing the care of others. You should make it clear what the source of information is for each fact, especially if you are discussing any care you were not involved in e.g. “Based on my review of the records I understand that Dr X …”.

When providing an opinion, consider whether you have relevant facts on which to base your opinion; whether you have the relevant expertise to answer the question; and whether you could support your opinion in court. Thoroughly review any relevant documents before drafting the statement.

Treating doctors normally only need to provide a very limited scope of opinion (discussed below).

Before you begin:

  • Why is the statement needed?

    Usually it will be to detail injuries and prognosis. Ask the police for a written request, including whether there are any specific issues they would like you to address.

  • Patient consent?

    You have a legal and professional duty of confidentiality to your patients and a request for a statement does not override this. Ensure patient consent has been obtained. Consent is usually arranged by the police, although consent can be obtained, either verbally or in writing, by you, or your employer. In a hospital circumstance, you may be directed to provide the statement by your employer.

  • Do I have the relevant records?

    Carefully reviewing the relevant medical records. Ensure you have the best possible understanding of the matter before you commit yourself to a written statement. You may be giving evidence based on this statement.

  • Due date and case reference

    If you ever enquire about the matter, it will usually be referenced by the trial title (e.g. Queen (R) v Smith) for the accused, not the name of your patient. Knowing the case title can be time saving down the track. Failure to provide a statement by the due date can result in you being subpoenaed to give evidence in person.

  • Why me?

    You may have been the doctor who examined the patient in the emergency department. At times a hospital doctor may be asked to provide a statement regarding a patient they have never seen, in which case you should preface your statement with this information. You don’t have to be involved in the care of the patient, but non-involvement might limit the information you can provide. Most matters are not that complex and a statement can be provided that will satisfy the requirements of the court.

    Where possible, limit the statement to the care you provided, unless contextually relevant, or you are specifically asked to provide a statement which includes the overview of care provided by others.

  • What if I refuse to provide the statement?

    Failure to provide a statement may result in action by your workplace, and/or a subpoena to give evidence at trial. Refusal to provide a statement could result in a complaint to a health complaint body such as AHPRA.

  • Who can assist me?

    Contact us for advice.  Your employer may wish to see a pre-final draft.


What to include in the statement?

  • Format

    The format of the statement may be state, territory, or even court specific. There may be no specific requirement as to format. In some states, the police may forward an electronic template statement for you to use. We offer a generic template which can then be pasted into the specific police format. To improve readability and referencing, use numbered paragraphs, page numbers, 1.15 – 1.5 line spacing, and sub-topic headings. You may have to acknowledge you have read and agree to certain legal obligations (e.g. your role as an expert witness). Make sure you read and understand the actual obligations!

    Provide laypersons terms to avoid being called to court to explain medical jargon.
    Witnessing and signing requirements vary between jurisdictions .The police can advise as to local requirements and may arrange for a police witness to the statement, if required. The last page of the statement should not just be your signature - at least one numbered paragraph should also be included on the last page.
    The police are typically happy with a PDF copy of the final signed statement, but occasionally may also require the original to be produced. You should keep a digital copy of the final signed document and a copy of the draft pre-final editable document.

  • Attaching documents

    Most statements do not require other documents to be attached.
    If necessary, documents can be attached as annexures.

  • Addressee, file and contact information header

    Unless dealt with by the template, the statement should be addressed either to the police officer requesting the statement, or “To the Court”, not  “To whom it may concern”.  Include the matter name and number if possible and patient’s name and DOB (but not the patient address). Include your business contact details, and not your private contact information.  

  • Background

    Provide a brief list of your relevant qualifications and employment summary, and your role and title at the time that you saw the patient

  • Source documents / information

    List any documents you have reviewed or will be relying on and where these were sourced. For example, the medical records.

  • Chronology

    If relevant, detail whether the patient was known to you prior to the consultation(s) in question. Briefly describe how you came to be involved in the patient care for the purposes of the statement (e.g. did you take a history and examine the patient).

  • Mechanism of injury

    Describe the patient’s reported (“alleged”) mechanism of injury. You typically won’t have witnessed the injury, so you will be relying on the testimony of others to describe the mechanism. Unless specifically asked by the police, keep this portion of the statement limited to what is clinically relevant to the injuries and avoid providing unnecessary non-clinical detail unless specifically requested.

  • Injuries

    List the injuries as determined by history and /or examination. Provide as much detail as you can (location; size; side). Detail any relevant investigations. You can also include the management of each injury, or you can detail your management under a separate heading “Treatment” if the treatment of each injury is extensive. You typically don’t need to list negative findings. Explain any prior existing abnormal findings.

  • Legal injury definitions

    Many police statements will be requested for the purpose of providing medical evidence about a patient’s injuries to the court (for the purpose of determining whether a criminal charge is met). The police will therefore often request the practitioner provide an opinion about the relevant legal tests for injury severity thresholds. These thresholds are not medical terms and may not correlate with a medical conceptualization of ‘severity’. Doctors would not be expected to know or be familiar with the legal definitions.

    • These legal terms for thresholds of injury severity vary between each state / territory, such as:  
      • 'wounding'[1]
      • 'bodily harm'[2]
      • 'grievous bodily harm'[3]
      • 'harm'[4]
      • 'serious harm'[5]
      • 'injury[6]
      • 'serious injury'[7]. 
         
    A very simplistic summary of the injury definitions is included below, just in case you receive a police statement request and need to have some understanding of what you are being asked. The court ultimately decides if the legal threshold is met and there are many cases where even the judges cannot agree. Your role is to help advise the court – this can be done by providing an opinion about the severity of the injuries couched in the same terms used to define the injury thresholds. This may save the court having to call you to give evidence under subpoena.

    If you are asked to comment on legal injury thresholds, the party requesting the statement should provide a definition of the relevant legal thresholds you need to consider. While it is not the doctor’s role to decide if the legal definitions are met, you should strive to assist the court on a medical common-sense basis where you can. For example, if you are asked to give an opinion (as relevant to the various threshold definitions referred to below) - state if a wound did / did not penetrate the dermis; the injury did / did not interfere with the health or comfort of the patient; the injury was / was not life threatening or permanent without treatment; the injury did / did not cause permanent scarring; the injury did / did not result in the death of a foetus.

     

    [1] Wounding- Caselaw relevant to ACT, NSW, Qld, Tas, WA. Breaking of the skin (dermis) and more than transient or trifling.
    [2] Bodily harm - Caselaw and legislation relevant to ACT, NSW, Qld, Tas, WA. An injury that interferes with the health and comfort of the victim (including formal mental health conditions but not normal emotional responses) that is more than transient or trifling but less than really serious.
    [3] Grievous bodily harm - Caselaw and legislation varies between ACT, NSW, Qld, Tas, WA. Generally, any permanent or serious disfigurement (ACT, NSW, QLD); endanger life (Qld, Tas, WA); harm to pregnancy or destruction of foetus (ACT, NSW); serious / permanent injury (QLD, TAS, WA); or cause a serious disease (NSW, QLD, WA).
    [4] Harm - Caselaw and legislation relevant to NT and SA. Physical and mental harm, excluding emotional reactions
    [5] Serious Harm - Caselaw and legislation relevant to NT and SA. Harm that endangers life or significant and longstanding (or serious and protracted impairment of mental function SA or serious disfigurement)
    [6] Injury - Caselaw and legislation relevant to Vic. Physical and mental injury and disease
    [7] Serious Injury - Caselaw and legislation relevant to Vic. Injury that endangers life; substantial or protracted; destruction of foetus

 

  • Opinion

    If you don’t have the relevant facts or qualifications or experience to comment, then explain this in the statement.

  • Signing, witnessing and the jurat

    The jurat is a paragraph in a statement where you take legal responsibility for the truth of the document and authorship. The form and location of the jurat may be determined by the jurisdiction in which you are providing the statement.

  •       

    Conclusion

    Although initially daunting, most police statement requests can be addressed by a relatively simple submission. For those unfamiliar with the process, or for unusual requests, early assistance from us can be invaluable.

    Dr Julian Walter
    Medico-legal Adviser, MDA National



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