I am going to talk today about witness statements, but a lot of these principles will apply to any formal report that is used to evidence reasoning such as assessments for Deprivation of Liberty Safeguards, social circumstances reports etc.
This is largely aimed at social care professionals, because family members and other ‘lay people’ will either have a lawyer who provides them with a lot of support when writing a statement or will get a bit of a ‘free pass’ if they are a litigant in person (i.e. don’t have a solicitor).
I find with social care professionals, they are expected to know how a statement should be prepared and so don’t always get a lot of assistance from their legal teams. I always put a lot of effort into helping said professionals with their statements where time allowed. But time was always limited.
So I am going to talk about some of the common issues I find in witness statements, and what lawyers like me think when we receive a statement with errors. I’m going to be a little harsh here, and not every lawyer is as irritated by these things as me, but we do all make assumptions when we read statements, it’s human nature. And sometimes how you say things is just as important as what you say.
Let’s start with an obvious but important one: grammar, spelling and punctuation. If I receive a statement or report full of typing errors, or worse, one that is difficult to understand because there are so many errors, then I immediately think ‘I’m going to have to keep an eye on this one’. If a professional can’t even be bothered to proof read and sense check a statement they know is going to be put before the court, then I have no faith that they are going to be diligent in the other parts of their job; the important things like care planning, assessing capacity and considering best interests. It just makes me think the professional is either lazy or horribly over-worked and neither of those states are conducive to good social work. So I’m going to go through everything they send me extra carefully, because they’ve lost my trust.
This doesn’t mean I am going to give you a hard time over one or two missed commas and ‘their’ or ‘there’ mix ups. I’m not a monster. But for the sake of an extra proof-read, it’s not worth it as a statement full of errors can start to undermine your argument before you’ve even started. Its the equivalent of showing up to a job interview in your gym gear: you might still get the job, but you are going to have to work a lot harder!
The next one is something that is a real irritation for me: copying and pasting from other documents. I am not talking about quoting relevant bits of other documents to explain your reasoning, but copying and pasting your entire reasoning with no attempts to pull things together or provide additional information. It speaks of laziness. But worse, it also indicates a complete lack of independent thought which makes me think that the writer either doesn’t understand what they are copying or doesn’t think they should have to explain themselves. Neither of these are traits that give me faith in the writer’s ability to deal with complex issues that come up in proceedings.
All it takes is a sentence or two afterwards explaining how you have taken that information into account, or summarising what the rest of the document says, and the statement reads much more coherently, and I am more likely to trust what’s been said.
Another issue that I come across regularly during proceedings is failing to answer questions. The first statement submitted to accompany an application is about setting out the background, but once you are actually in proceedings then most of the time a statement is being submitted in accordance with an directions order. Now the lawyers involved will have spent quite a lot of time discussing what they think needs to be covered in the next statement, and then a judge has agreed that these are the points that need addressed before the next hearing and these have been set out in that directions order. So it is really in your interests to just answer those questions.
If, for example, the order says the social worker is to set out the options that have been explored including any that have been ruled out, then don’t write ‘there are no other options’. There are always other options, they are just usually options that have been ruled out because they won’t meet needs, or are too expensive etc. Equally, if the order says to set out what activities are available to P, this is because those activities are relevant to whether it is in P’s interests to move there, or stay there. So ‘there is an activities co-ordinator’ isn’t the answer, because this may or may not benefit P as an individual. It is necessary to set out the types of activities and how P will be supported to engage in them.
Worse still, is the statement that just ignores the points raised in the directions order, and says only what the writer wanted to say.
When I read these statements I always wonder if the person doesn’t understand the relevance of the question asked, or if they are just so arrogant as to think that the court is supposed to essentially ‘take their word for it’. Neither arrogance or ignorance are what I am looking for in a social care professional.
Court proceedings have to be treated as significant, and judges will also note when their orders aren’t being complied with. So even if the judge doesn’t criticise a party for not complying with an order (which they do on many an occasion), they’ll still be noticing that this is happening and it can harm a party’s credibility. In extreme examples, it could also have cost implications as if the proceedings drag on purely because a party is not providing the necessary information, that party could then be ordered to pay the costs incurred by the other parties.
So just answer the question. Seriously.
This next one should really go without saying, but it comes up way more often than it should: ensuring information is up to date. If a statement refers to assessments that have been reviewed, referrals that have since taken place, appointments with doctors that were actually weeks ago as if they are still to take place, what this says to me is ‘this person isn’t a priority’. It suggests that the writer couldn’t be bothered to update their report after they first received the information. The court is often dealing with moving targets and so the evidence it receives needs to be as up to date as possible for proceedings to be effective. We accept that there will be some circumstances where events move faster than can be kept up with, but often all that is needed is a check of the latest emails, or a quick telephone call and if someone can’t take the time to do that when completing something as important as a witness statement, it suggests there will be other corners cut.
Another issue that crops up in a lot of statements, particularly when exploring best interests is generic information. Mentioning that something is ‘less restrictive’ without explaining what the impact actually will be for the person, for example. Or saying ‘needs will be met’, ‘community access will be supported’ without further explanation is simply not helpful. It demonstrates no consideration of the individual in question as a person with their own wants and needs and instead speaks of ‘going through the motions’. And this does not give me confidence that the professional involved is really trying to do what is best for person, and comes across instead as trying to ‘get this matter of their desk’.
The fix is so straightforward as well: this option is less restrictive because P wishes to have greater freedom and this will enable P to have greater time without direct supervision; P’s needs will be met because the support staff will be able to provide the care assessed as required in the care plan, namely prompting to take medication and supporting with personal care; community access will be supported because P will have 4 hours a day of 1:1 care that can be used to undertake activities in the community and P will be encouraged to choose from available activities such as the cinema and craft club. It’s just a longer sentence, but it reads much more like someone who is doing their best and should be listened to.
What really makes me see red is ‘passing the buck’ and I am quite likely to give a professional a hard time if they do a lot of this. When I am talking about this, I am referring to professionals who simply state ‘that’s outside of my role’ when asked to explain something. It may well be outside of their role, but have they passed it on to another professional who can help? Have they followed up on a referral? Have they done anything other than wash their hands of the matter?
This is frustrating when it takes place between different professionals when they are under a duty to co-operate with each other. They are often even in the same meetings every few weeks, yet are apparently incapable of speaking to each other about the issues at hand, which comes across very badly. It’s an indicator to me that either that professional has a poor work ethic or that department has a worrying work culture.
When it happens with family members, it suggests a lack of empathy. To say ‘well I told her daughter X and she never got back to me’ when said daughter is working full-time, raising 3 children and caring for their parent, all whilst struggling to understand the legal processes in play, worries me. I usually want to see some follow through: a subsequent call, an email or a letter. And when the interaction between professionals and family members is strained, which it often is, I also want to see evidence that you not just told them X, but explained what X meant and what was needed from them. This makes me much more inclined to believe professionals are doing a good job, even if the family disagree.
The final common irritation I find in witness statements is making broad sweeping statements that aren’t backed up by the evidence. A common one is ‘P is supported to access the community regularly’ when the records show P has only left the placement twice in the last 9 months. It tells me the social worker is taking whatever the carers says at face value and not carrying out any real checks. But the thing is, the solicitors for P usually get records disclosed to them so we’ll quickly find out if this is true or not. Even so, sometimes I can forgive this. If the social worker has asked the question and been told this by the home, then I might not be too harsh about it.
I will be less inclined to accept it when the evidence contradicting what is said is actually exhibited to the statement. For example, ‘at the best interests meeting it was agreed…’ with attached minutes that say there was not complete agreement. Or ‘Dr Z supports this option’ with a letter from Dr Z saying that they consider P should move but that this will take time so P will have to remain where they are for now.
If the social worker is trying to mislead the court, then they’re doing a poor job of it! In most cases it is assumed that the social worker made a mistake when they were writing their statement, rather than that they are being dishonest. But it tells me the social worker isn’t understanding what is going on around them, and just taking in the bits that support what they already want to do. Or that they couldn’t be bothered to read the document they are exhibiting to their statement.
The odd error here and there is acceptable. It’s not ideal, but we all have learned to deal with a less then perfect system. If statements contain multiple examples of the above issues, or the same social worker submits multiple statements containing examples of this, then it becomes harder and harder to give any weight to what is being said and we will just keep digging deeper and asking more and more questions until we are satisfied. So it creates a lot of unnecessary work for professionals in the long run that could just be rectified by casting a critical eye over the draft statement.
Which leads me to the primary thought that always appears in my brain when I read a statement with these issues: ‘what lawyer agreed to submit this?’
Because I can be understanding about a social worker who doesn’t know what a statement should be. But lawyers really ought to know better. We trained for this, after all!
And if a lawyer isn’t bothering to read statements properly before submitting them, then I’m not going to trust that they are advising the local authority on what to do properly either.
If a lawyer like me takes against the social worker and the lawyer on a particular case, well that case is going to get A LOT of that lawyer’s attention. Which may not be what the local authority wants…
In case it isn’t obvious from the fact I still haven’t identified the authority I used to work for, or the organisation I now work for, the views expressed on this blog are my own opinion and not the opinion of either that local authority or organisation