Preparing to be an expert witness: more specialist nurses are needed to provide expert evidence or advice in a range of courts and tribunals. Good preparation for the task is essential.

When a patient death or the care provided to a patient is subject to a legal enquiry, nurses can be called to act as witnesses, either as witnesses of fact or witnesses of opinion.

Witnesses of fact provide evidence about what they saw, heard or did. Nurses are frequently called to give evidence as witnesses of fact in cases where an incident has occurred and it involved a patient they were caring for. For example, after a sudden death of a patient, the nurses caring for that person could be asked to give evidence in a Coroner's inquest. (1)

Witnesses of opinion, on the other hand, are asked to provide an opinion about what someone else did. This evidence is an opinion from a person who, because of qualifications and/or experience, can assist a court or tribunal or other investigator such as the Health and Disability Commissioner, to understand the impact of factual evidence and thus help them ascertain the truth.

Generally people can't give their opinions in courts or tribunals, but there is a major exception to this rule in the case of expert opinion evidence, provided that:

* the subject matter is a sufficiently recognised branch of science at the time the evidence is given;

* an expert on the subject matter gives it;

* it is based on proven facts that have been considered property by the expert; and

* the evidence is of real assistance to the investigator or court or tribunal, ie it is reliable and assists in ascertaining the truth. (2)

The investigating body or court or tribunal can reject the evidence if they are not satisfied with it. This could happen, for example, if there was contrary evidence from another expert, or doubts as to the factual basis for the opinion, or reservations and concessions in the expert's evidence. (3)

Expert witnesses must abide by a Code of Conduct. (4) The expert must state s/he has read it and agrees to comply with it.

If you are asked to give expert advice or evidence, the code is normally brought to your attention by the person who is requesting your evidence or advice, and a copy is given to you so you know what is expected of you.

The code states that the expert's primary responsibility is to the tribunal or court. An expert witness has an overriding duty to assist the tribunal or court impartially on matters within his/her area of expertise. An expert witness is not an advocate for the party who engages the witness. (4)

Assessing reasonable standards of care 

An expert nurse witness is likely to be involved in looking at what the reasonable standard of care should have been in cases where a nurse is alleged to have made an error or was negligent. (1) This means the expert must let the investigator, tribunal or court know what the standard is that nurses must comply with in those circumstances. The expert opinion must judge the conduct complained of by the standards of the profession, not by what the expert's personal standard is. The expert must say what the standard is of an ordinary nurse, not what is best practice. In fact, the evidence is likely to be rejected if it advocates "best practice" as the requisite standard, because that is not the legal standard.

It is up to the tribunal or court to decide if someone is at fault. All the witness has to do is say what the standards are and give an opinion about whether the standard was met.

It is preferable nurses give expert evidence about nursing, not other hearth practitioners. More specialist nurses are needed to provide expert evidence in the form of advising the Hearth and Disability Commissioner or the Director of Proceedings, or to give expert evidence in the Hearth Practitioner's Disciplinary Tribunal or in the courts.

If asked to give expert advice, you should expect to be paid. This is different to a witness of fact who can be forced to give evidence by way of witness summons and will not be paid for it. A good expert witness requires familiarity, not only with his/her field of expertise, but also with the subject matter being investigated and with the obligations of an expert witness.

As an expert witness, you should protect yourself from having your credibility impugned and thus your reputation as an expert sullied. You can protect yourself by:

1) never giving an opinion without clear written instructions;

2) checking what you are asked to do is within your area of expertise and can be done within the time frame and with the information provided to you;

3) asking for more information if you think you need more;

4) going carefully through all the information you have been given and forming your own opinion and answers to the questions you've been asked;

5) never adopting someone else's opinion and then fitting the information to suit;

6) drafting your opinion in the proper format. This usually includes what you've been asked to do; your qualifications and experience; full list of information used by you; assumptions you've made, if any, with reasons; your opinion; all important documents and references.

A good expert is careful, methodical and confident. S/he produces well-researched evidence and opinions that can be readily understood by lay people, and s/he also understands the Code of Conduct for expert witnesses and abides by it.

References

1) Johnson, S. (2004) Health Core and the Law. (3rd NZ ed). Wellington: Brookers.

2) Dean, T. (2006) Controlling expert evidence. NZ Lawyer, May 5, 10.

3) Matheson, D.L. (1997) Cross on Evidence (6th NZ ed). Wellington: Butterworths.

4) High Court Rules. Rules 330A-330D. Courts of New Zealand.

By NZNO legal adviser Sue Johnson 

* NZNO is homing e series of workshops on how to be on expert witness. The first was held in Christchurch lost October, with one in Auckland on March I and in Wellington on March 13.

For more information and a registration form, contact professional nursing advisers Margaret Cain in Auckland ([e-mail]) or Charlotte Thompson in Wellington ([e-mail]).