A witness to fact

The scene

The patient had attended the appointment with her mother. The member had assessed the patient's injuries and provided dental treatment for a mesial incisal enamel-dentine fracture to the UL1.

The dentist, a DDU member, contacted the DDU to ask if it was appropriate to provide the police with a report and whether he could charge for his time. He was also unclear exactly what information he should put in the report.

DDU advice

The DDU adviser explained that it is not unusual for a dentist to be called on from time to time to provide evidence about a patient. The dentist has a professional responsibility to provide information, as he is likely to be in possession of facts relevant to the case. The provision of such information would be subject to the member's usual responsibility to protect patient confidentiality. The DDU informed the member he would need to ensure he had appropriate consent to disclose this information to the police before doing so.

The adviser went on to explain that a dental professional can potentially be summoned to appear as a professional witness in court or at a tribunal and would be legally obliged to comply with a summons. In the case of a police request for a report, ordinarily no fee is payable.
In this instance, the girl involved was under 16, the legal age of consent to dental treatment (in England and Wales). The member would need to consider whether the patient was able to understand and appreciate the consequences of a decision to disclose information to the police, even though he may consider her to be Gillick competent to consent to dental treatment - that is, the consent of a child under 16 being regarded as valid when certain criteria are met.

The adviser therefore advised the member to satisfy himself that he had authority to make the disclosure, preferably in writing, from the patient herself, if he considered her competent, or a person with parental responsibility, if he considered she was not competent. The DDU would normally advise any dentist that, if possible, it would be prudent to involve a person with parental responsibility in any decision involving a child under 18, provided the patient agreed.

The DDU adviser added that the evidence the member provides to the police should be based on factual information taken from the patient's clinical records. The member's report as a professional witness should be a witness of fact report outlining his professional dealings with the patient. The report should detail his findings or dealings with the patient, based on first-hand evidence only, and any statement in the report should be capable of being substantiated. It would be reasonable for him to include the history given by the patient as documented for example 'the patient told me that she had been hit in the face'. The DDU adviser explained that it is understood that an interpretation of the examination will be influenced by the history given to him by the patient.

Importantly, the DDU adviser also explained that he would not be acting in the capacity of an independent expert witness and that it would be inappropriate to express an opinion on causation - that is, how the tooth had been fractured - as he was not a witness to the incident and that his response could be open to challenge in court. The DDU adviser said that if an opinion is required, an independent expert witness would ordinarily be asked to comment on issues such as current condition and prognosis, breach of duty or causation. It was suggested to the member that he may wish to send his proposed report to the DDU prior to submitting it to the police.

This page was correct at publication on 21/12/2010. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.