Witness

If you are called as a witness for a disciplinary hearing you should familiarise yourself with your employer’s disciplinary policy and can seek support from your human resources department. Understandably, you may feel you do not want to attend, however, it is generally implied in your contract of employment that you should comply with internal investigations or hearings.

If you are a nurse, the Nursing and Midwifery Council (NMC) Code requires you to cooperate with internal and external investigations.

Do I need RCN support?

It is not always necessary to contact us if you are called as a witness. You should assess the risk and ask yourself:

• ‘Have I done anything wrong?’
• ‘Could I be negatively affected by this?’
• ‘Could my practice be called into question as a result of giving evidence’? 

If you are concerned that being a witness in the hearing could compromise your position or result in action being taken against you, please contact us.

Witness statements

If you are asked to provide a statement (purely a witness), and you are sure that your conduct or practice is not being questioned, write the statement by following our guidance on statement writing and hand it in - we don't need to check it for you. 

All registered nurses and midwives have a professional duty to comply with internal and external investigations and failure to do so could mean that your registration is called into question. The NMC can issue you with a formal summons to appear.  

As a witness you will be asked questions by the NMC legal representative and cross examined by the registrant or their legal representative (or vice versa), depending on who has called you as a witness. The panel will also ask you questions.

It is also important that you read the NMC’s information for witnesses and see the virtual tour of the hearings centre.

Do I need RCN support? 

Witness statements

If you are asked to provide a statement (purely a witness), and you are sure that your conduct or practice is not being questioned, write the statement by following our guidance on statement writing and hand it in - we don't need to check it for you. 

Like the NMC, the GMC holds fitness to practise hearings. The Medical Practitioners Tribunal Service (MPTS) is responsible for running interim order panels and fitness to practise hearings.

As a witness for the GMC it is likely you will be asked questions by the GMC legal representative and cross-examined by the registrant or their legal representative. The panel will also ask you questions.

As with the NMC, the GMC can issue a formal summons to witnesses.

The GMC website has information for witnesses including an interactive virtual tour of the hearing centre.

Do I need RCN support?

GMC staff can answer your questions on the hearing process, assist with travel arrangements and handle expense claim forms. You will have a contact person that can help with any queries. It is not usually necessary to contact us if you are called as a witness. The RCN cannot represent witnesses. 

• ‘Have I done anything wrong?’
• ‘Could I be negatively affected by this?’
• ‘Could my practice be called into question as a result of giving evidence’? 

If you are concerned that being a witness in the hearing could result in action being taken against you then please contact us.

Witness statements

If you are asked to provide a statement (purely a witness), and you are sure that your conduct or practice is not being questioned, write the statement by following our guidance on statement writing and hand it in - we don't need to check it for you. 

Coroner’s Inquest (England, Wales and Northern Ireland)

Coroners inquire into violent and unnatural deaths, sudden deaths of unknown cause, and deaths that have occurred in prison as well as certain other categories specified in the Coroners Act 1988. The coroner’s inquiries may result in the holding of an inquest.

An inquest is a fact-finding inquiry to establish:

• who has died, and
• how, when and where the death occurred.

The role of all witnesses at an inquest is to assist the coroner in finding out what happened.

As a witness, you will not always be called to give oral evidence, sometimes a statement will suffice. The coroner can send a summons to request your attendance as a witness at the inquest. If you receive a summons, you must act on any instructions provided as soon as possible. If you are unable to attend the inquest on the date and time stated, you should contact the Coroner’s Office immediately. Failure to attend a coroner’s inquest (if you have been summonsed), could result in you being brought before the court and you may face criminal charges.

Do I need RCN support?

We expect your employer to represent you at an inquest. If you are not being supported by your employer, or if you are unsure whether you are a witness, it is extremely important that you contact us as soon as possible to discuss the next steps.

If you are asked to provide a statement, follow our guidance on statement writing.

See the Coroner’s Courts Support Service website for more information.

Fatal Accident Inquiry (Scotland)

A Fatal Accident Inquiry is a statutory public inquiry that is conducted by the Procurator Fiscal into the circumstances of a death or multiple deaths. The Fatal Accident Inquiry is heard by a sheriff in the Sheriff Court.

As part of the investigation the court will require written statements and the Procurator Fiscal will then decide who to call as a witness.

If you have been cited and do not attend, you may receive a penalty which could be a prison sentence or fine.

If you are called as a witness the coroner may ask you to read through your statement, or may take you through the statement in court.

Do I need RCN support?

We expect your employer to represent you at an inquest. If you are not being supported by your employer, or if you are unsure whether you are a witness, it is extremely important that you contact us as soon as possible to discuss the next steps.

If you are asked to provide a statement, follow our guidance on statement writing.

Further guidance on being a witness at a Fatal Accident Inquiry in a Scottish Court can be found on the Scottish Court website.

Employment Tribunals (ET) determine disputes between employers and employees over employment rights.

As a witness at an ET you will be asked questions by the claimant (or their legal representative), by the respondent (or their legal representative) and also by the tribunal panel.

If a colleague is making a claim against your employer to an ET and the employer has called you as a witness, you should seek support from the employer’s legal team. They will help you prepare for the tribunal. If a current colleague, ex-colleague or their legal representative calls you as a witness, you are there to report what you have witnessed and to help the tribunal reach a fair decision. 

For more information visit www.justice.gov.uk.

Do I need RCN support?

If you are asked to provide a statement (purely a witness), and you are sure that your conduct or practice is not being questioned, write the statement by following our guidance on statement writing and hand it in - we don't need to check it for you. 

Being a police witness can be a frightening experience, but remember, you will only have to go to court if the defendant:

• denies the charge and pleads not guilty
• pleads guilty but denies an important part of the offence which might affect the type of sentence he/she receives.

Most cases are heard by magistrates or a district judge in magistrates’ court. Jury trials for more serious crimes are held in the Crown Court.

The police can issue a formal summons to witnesses requiring them to appear. If you receive a summons, you must ensure that you comply with any instructions contained within the summons. If you are summonsed and fail to attend, you can be brought before the court and may face criminal charges for failing to appear. You should always take a witness summons seriously and if you are unable to attend for whatever reason, you should notify the court as soon as possible.

Do I need RCN support?

If you are questioned by the police it may be the case that you simply need to report what you have witnessed. However, if you are concerned about the incident or any aspect of your conduct or practice then you should call us immediately. If this is not possible you must seek the support of the duty solicitor straight away. 

If you find that you are a suspect (i.e. the police say that they will be interviewing you under caution) you should not answer questions or submit any statement until you have legal support. Please contact us.

If you are asked to provide a statement, follow our guidance on statement writing.

Civil disputes cover a range of issues including non-payment of debts, personal injury, breach of contract, housing disputes and bankruptcy. Generally, attendance is optional in civil disputes but the court can issue a formal summons to witnesses requiring them to appear. If you receive a formal summons, you must ensure that you comply with any instructions contained within it.

In England and Wales, most of these cases are dealt with at the county courts. These are also sometimes called the small claims courts, although they also hear more serious cases. The most serious ones are heard in the High Court. In Scotland they are known as Sheriff Courts.

There are two main types of hearing:

• small claims hearings (for value usually less than £10,000) - typically last no more than about an hour
• trials (for value usually above £10,000) - may last more than a day. Claimants and defendants often wish to be represented by a solicitor at the hearing, particularly for complex cases.

As a witness in court you will be asked questions by the claimant (pursuant) and defendant’s legal representative. The judge or sheriff may also ask you questions.

Do I need RCN support?

The RCN wouldn’t normally be involved with civil disputes unless they affect your work. You should contact us if you have been called as a witness for a clinical negligence claim and you feel your own practice may be called into question, or if you are concerned.

It is extremely important that you contact us if you are called to be a witness for a public inquiry.

A public inquiry is an official review of events or actions ordered by the government. It is established under the Inquiries Act. A public inquiry accepts evidence and conducts its hearings in public forum.

Typical events for a public inquiry are those that involve multiple deaths, such as the inquiry into the role of the commissioning, supervisory and regulatory bodies in the monitoring of Mid-Staffordshire Foundation NHS Trust in 2010.

Before the hearing

Prior to the hearing or court date you should be provided with your witness statement and any documents you may have to comment on. Practice reading your statement out loud and read it slowly, clearly and concisely. This will refresh your memory if it has been sometime since the events took place. It is essential that others can follow what you are saying, so take your time and practice.

Make sure you are comfortable with the contents of your statement as you could be asked about it. It should be an accurate summary of the event.

It can be very useful to go to a hearing before you participate in one. NMC hearings, Coroner’s Court and Employment Tribunals are open to the public. Having this experience could help you prepare and ensure that you are more relaxed on the day.

Write down any questions you may have about being a witness and, if you are unable to find the answers, ask your legal contact.

Note the day of the hearing and make sure you are available to attend. Most hearings start early in the morning. You should aim to arrive half an hour before the hearing is due to start to give yourself time to review your witness evidence, discuss any last minute issues or questions with the legal representative.

Arrangements on the day

Think about what you are going to wear. Dress code is important and you should wear smart clothes. Take your statement with you at all times, take contact numbers (in case you are unexpectedly delayed) and something to eat and drink. It is also a good idea to take something to read with you as you may be there some time.

Take a pen and paper with you. If you wish to communicate with your legal representative at any time during the hearing you should write this down and pass it to him/her so as not to disturb the hearing in any way.

Make sure your mobile phone is switched off at all times during the hearing.

Be aware of your body language and try not to look defensive e.g. by folding your arms.

Don’t be alarmed if you feel nervous prior to giving evidence. This is perfectly normal. Try to relax as much as possible. Remember that your legal representative is there to look after you and will object to any unfair or improper questioning.

Answering questions

When answering questions put to you it is good practice to turn towards the panel, judge or coroner. They are crucial to the hearing and they need to understand all the issues.

It is very important to take your time. Don't feel rushed or obliged to give an instant answer to any question. Listen carefully to the questions asked and don't be afraid to take your time in considering your answer. If you do not understand or did not hear the question put to you, don't be embarrassed to ask for the question to be elaborated on or repeated.

After you have taken time to consider the question, always answer a question directly and clearly. Do not elaborate on your answer unless you need to put it in context.

Your answers should be limited to those matters of which you have personal knowledge. You should therefore avoid speculation or giving opinion. If you do not remember a particular event make this clear in your answer. It is better to say “I am afraid I cannot remember” than to speculate.

Sometimes "yes" or "no" is quite sufficient. As a rule keep your answers to the questions as short as possible. Try not to “um” and “ah”.

Although the other party’s legal representative may seek to provoke you, he or she is only doing their job and therefore you should remain as calm as possible and avoid offering any defensive, emotional or sarcastic reply.

It is important that you do not let them cut your answers short. Remain calm and finish your sentence.

Answer all the questions truthfully and accurately.

In giving your answers watch the panel/judge/coroner’s pen if he or she is taking notes. You should provide him or her with the opportunity to note what you are saying before you carry on.

If you are asked about a document do not be embarrassed to take your time in locating it. You will have a copy of all the documents in front of you but no one will expect you to find it immediately.

After giving evidence

After giving evidence you should remain silent when other witnesses are being sworn in and are giving their testimony. You should not distract, prompt or give any signals to other witnesses whilst they are giving their evidence. The panel will be observing all those taking part whether they are giving evidence or not, so be aware of your conduct and body language at all times.

Being a witness for a person without legal representation

Due to high legal fees it is quite common for a person to represent themselves rather than pay for legal support. In this scenario it can be a little more unsettling because the questions may be put to you directly by the person being charged rather than by their representative, however the same principles apply. Assess the risk to yourself and if you still have concerns we can discuss them with you.

Nursing staff being asked to witness wills in emergency situations  

In the course of your duty you may be asked to witness a patient signing a legal document such as a will or Power of Attorney. There is nothing in law preventing a nurse from being a witness to a will, but we have always asked our members to consider the following points before agreeing to do so:

• A witness to a will can later be drawn into legal proceedings, although this is rare. A witness may be asked to testify about whether the person appeared to understand what they were signing, for example.
• Local policy will often appoint this task to a specific person, such as a manager in your workplace. 

For some patients, there might not be another opportunity to sign their will e.g. for those admitted to ICU, and the staff caring for the patient might be the only people permitted to come close enough to the patient to witness the signature. The Government recently announced plans to change the law to allow for wills to be witnessed remotely, via video call software. Details of this change are due later in 2020. Nevertheless, staff may be the patient’s only choice for witnesses to their will before going for treatment or losing consciousness.

Staff should check local policy, if available. It is not the responsibility of a witness to assess whether the person who made the will has capacity to make a will. However, you would be wise to escalate the matter to your line manager and to consider refusing to be a signatory if you are concerned that the person does not appear to readily understand that they are signing a legal document.

Any request to witness a will should be recorded in the patient’s notes.

Other legal documents

You should always check and follow your employer's policy.

The RCN would generally advise against you witnessing the signing of legal documents, since this may lead to you being involved in legal cases should there be a dispute.

There may be circumstances where you are the only person who might realistically witness a signature. This may be when the patient has no apparent relatives or friends who might do so, is living remotely from others, or is terminally ill (though not mentally incompetent) and there is some urgency for a witness.

In these exceptional circumstances it is acceptable for you to witness the signature, although you should not feel obliged to do so unless local policy demands you do this as part of your role.

In all cases, you should record your witnessing of the signature in the patient's notes.

It would not be appropriate for us to check the document before you sign it, as you are simply witnessing the signing of the document.

It can be very difficult to arrange the time to attend interviews and hearing dates. If you have been called to a formal hearing then your employer should be flexible. You do not have the right to paid time off work to attend a hearing but they should allow you to swap your shifts, owe time or take unpaid leave. If your employer gives you unpaid leave, you can normally claim for loss of earnings. You can also usually claim for subsistence allowance and reasonable travel expenses.

Check the relevant policies, discuss the issues with your employer and contact us if there are difficulties.

Gov.uk (England and Wales)

Scottish Courts

Courts and Tribunal Service Northern Ireland

Advisory, Conciliation and Arbitration Service (ACAS)

Labour Relations for Northern Ireland

Coroners Court for England and Wales

Coroners Court Northern Ireland

Procurator Fiscal Scotland

Nursing and Midwifery Council

General Medical Council

Medical Practitioners Tribunal Service

Ministry of Justice

Victim Support