Professional Reports

Writing Expert

and other

Professional Reports

(Pre-publication draft – May 2012)

Introduction

This guide is for use in writing formal reports. It is primarily directed towards reports that are prepared for the court (by expert witnesses) but much of the useful advice is applicable to all formal report writing and especially those with the tag ‘independent’.Reports for disciplinary, grievance, complaints, and audit, investigatory, inspection and case review purposes are frequently used for evidential purposes. Reports prepared with the standards required by the court in mind are more likely to be ‘fit for purpose’ and capable of withstanding challenge.
In the interests of clarity, the guide is divided into two sections – process and content/style.
The ultimate aim must always be to produce a free-standing report – i.e. from which the reader can glean the key issues in the case or situation, understand the available evidence and reach a clear understanding of the range of (expert) opinion without needing to refer to any other document.

Process

Spend time on agreeing and understanding the instructions or terms of reference for the report. This should be in writing as the formal commission for the report.
Ensure that the case or circumstances is within the area of your competence. Beware of knowing about a subject in theory but not in practice. If the situation is historical, ask yourself if you really know about the time in question. If you are taking on the assignment to gain experience make sure you are properly supported. On occasion, in desperation, people[1] commissioning reports may accept someone with partial knowledge. (See Appendix 1 in respect of solicitors).
It is equally important to ensure that there are no conflicts of interests. An expert witnessshould not have worked for any of the parties involved in the case. The same consideration is important for independent report writers. To be truly independent they should be free of association with the commissioning agency. If they have worked for the agency in the past then they need to make sure they do not know any of the parties involved.
The work of analysis of the evidence has to be painstaking to provide the detailed picture the report should paint – you cannot get by with skimming the information. The practice of redaction has the potential to complicate understanding and in the worst case can render documents incomprehensible. See Appendix 2.
If reports require anonymised names then establish the approach with the commissioner of the report in advance. A simple change of names makes for an easier read but agreed coding may be necessary where a number of reports have been commissioned about the same subject matter.
In situations when your report necessitates the bringing together of complex facts, views and opinions from multiple sources with drafts of the report used to mediate the final product then you should have:
Arrangements to make it clear that a document is in draft
A system of version control
Where necessary, electronic and hard copy methods of confidentiality and restricted access should be applied

These should be agreed with the commissioner along with the terms of reference.

Expert witnesses are reporting to the court. They must be impartial, unbiased and objective. Make clear distinction between the history and story given, that recorded in the files, your own findings and interpretation of those findings. For all reports never fall into the trap of writing what you think your client wants to read. Professional reports stand or fall on the facts, the informed opinions of participants and ultimately your professional opinion about the findings. Your credibility is at stake.
Where interviews have been conducted, give details of the interviewer’s qualifications if relying on their expertise, and identify whether they worked under your supervision. Keep records of all interviews and if appropriate seek a signature of the interviewee that they are satisfied with the record.
Records of interviews should include positive and negative findings. They should be contemporaneous or as soon as possible after and the use of note-taker/recorder should be considered.
Focus on the significance of the findings for the impact on service outcomes, everyday life of service users or performance of practitioners and managers. Give careful consideration to the preparation of questions and key lines of enquiry. Is the approach to be structured or more flexible? Should questions be open or closed? Are you trying to explore or home in on facts?
In the report adhere to the instructions or terms of reference. Comment on each question or allegation of service failure / negligence / malpractice separately, quoting each whenever possible
The conclusion of the report should only comment on matters within the author’s area of expertise. Give timescales, actions needed for probable improvement or deterioration of the situation found, including what options were/are still available. Give an idea of how long it might take and the complexity and risk.
Justify the conclusions reached by reference to the evidence, your specialist knowledge and any published references you relied on. When dealing with an issue on which there are a range of opinions, provide reasons for the view expressed and state those opinions.Where you take sides in an area of factual dispute, give a coherent explanation of why you favour one version over another.Where there is evidence undermining your opinion, outline that evidence and explain why it is not persuasive.
Avoid further repetition of the facts but summarise opinions reached.Return to the issues you have been asked to considermaking sure that an opinion has been given on all relevant matters and proper attention given to the relevant professional standards applied.
In reports for the court[2] finish with a statement of truth. “I believe the facts stated in this expert opinion (or whatever type of report it may be) are true.”
Appendix 3 gives an illustration of the process involved in the production of an expert report and Appendix 4 gives some advice about working with lawyers.

Content and Style

For clarity, reports should be short and to the point. Substantiating information should be contained in Appendices to avoid cluttering the main report. A chronology or history of the case should be in an Appendix with clear referencing back to the documentation for easy cross-checking. The main report will consist of an outline of the pleadings / allegations / case / issues and conclusions reached by reference to the evidence in the case, the author’s specialist knowledge and any published references used.
Expert reports should be written in the first person. The commissioner should be asked if there is a preferred format and style. In the absence of direction it is suggested that pages must be numbered and have clear margins at each side (justified). The text should be well spaced (at least 1.15), a minimum of font 11. Underlining should be avoided with bold being used to denote a heading. Italics can be used to designate a direct quotation.
All paragraphs should be numbered, be relatively short and have appropriate sub-headings. They should be clearly referenced to both the appendices and the original documentation.
The title page of the report should include: date of the report; other relevant dates (e.g. of interview or visit); the identity of the parties involved; full name (and DOB) of claimant if relevant; the party providing instructions (report commissioner); the nature of the report.
Personal details, name, current position and summary of qualifications and previous experience of the author should be included. This can take the form of a mini CV and be included as an appendix to the report. See Appendix 5.
The report must include a statement of the opinion you have been asked to provide and details of your relevant knowledge and experience which enable you to comment on the issues.
All documentation considered and relied upon in reaching your opinion in the case must be listed.When referring to important parts of records, quote relevant entries verbatim if possible and identify them as direct quotes.
Identify disputed facts and state the sources of the information set out – e.g. “history given on admission to hospital 01.01.2011”.
Explain relevant technical terms and abbreviations either within the text itself or in a Glossary as an Appendix.

Appendix 1 – Historical Cases

You need to be confident that your expertise is applicable to the time of the events in question and that you are knowledgeable about the law, regulations, guidance and professional practice then. Evidence needs to be reviewed for a sufficient period of time before and after the incident in order to provide an appropriate historical context.

The typical sorts of issues which may arise include:

What was the statutory framework at the time?

What guidance[3] was issued?

What were contemporary professional standards and expectations?

What should standard practice for the situation have been?

Do the records demonstrate that standard practice was followed?

Are the records complete? If not, is it possible to tell whether the lack of records was the result of poor recording, lost records or failure to do the work?

Appendix 2 – Redaction

The Data Protection Act 1998 governs the obligation of Local Authorities in relation to data held on behalf of individuals such as those held in care. Part 2 of the Act gives any person whose data are kept in this way a right of access subject to certain limitations contained in Part 4.
The dilemma posed by redaction is the protection of an individual’s privacy as opposed to the clarity of information which will enable the expert witness to draw meaningful conclusions from the available documentation.
The situation is exacerbated whenever there are shared records which will contain a lot of information which does not have direct relevance to the person in question. Since the practice of maintaining family files has been standard practice for several decades, the problem will apply to a large number of individuals involved in these cases.
In practice, redaction varies greatly between organisations, ranging from all information being made available with no redaction through to documents where all references to any person other than the subject are removed. There seems to be an unfortunate correlation between the extent to which files have been redacted and the quality of the redaction – the more the redaction, the lower its quality.
Expert witnesses need to have these considerations uppermost in mind when approaching the task in hand. Solicitors can request un-redacted copies of documents, however this takes even more time in what is usually already a protracted process. If the expert is prepared to work with a redacted document then it is appropriate to use disclaimers to highlight where redaction may have lead to aspects of the case being missed or misunderstood.
It is quite acceptable for an expert to point out records which they would have expected to be available but whichhave not been made available.

Appendix 3 –Illustrative Account of the Process

Below is an illustration of the way the expert witness process works.

After the preliminaries, which include written instructions, the solicitors send the material. It has to be managed confidentially where one works and in transit.

A deadline is usually agreed for the production of the draft report.

Draft reports are sent by email to the solicitors for comments on accuracy and clarity (not opinion).

There is frequently, but not invariably, a meeting with the solicitor and the barrister at which the expert’s views are tested. Clearly the barrister (who gives the lead) is arguing from the point of view of the claimant or defendant, but the expert witness has to remain neutral. This is always respected by barristers.

If the other side has also appointed an expert witness, the two experts then share their reports and discuss any differences. They then produce a joint report, which may simply repeat and justify their differences or may indicate some changes of view or a joint understanding.

The barrister for the other side may put written questions to the expert witness to clarify the report. Usually this clarification allows the lawyers to resolve issues and reach a settlement out of court.

Signed hard copies of the reports have to be available for the court. Up to that point electronic versions are usually accepted.

The legal documentation has to be kept safely by the expert witness until the case is resolved, which may take some years. At that point (and the solicitors do not keep the expert witness informed) a decision has to be made whether to return the files to the solicitors or to shred them. There seems to be no standard protocol on this point.

Appendix 4 – Working with Lawyers

The central task of the expert witness is in one sense to translate social work processes into legal ones. Social work deals in balancing inadequate evidence, weighing up probabilities, monitoring to assess trends and progress and making judgements which are shades of grey. Lawyers on the other hand, want things in black and white; they want to know if someone was negligent or not, and when. To provide lawyers with the sort of statement they find useful needs careful thought.
Some lawyers like the expert witness to be explicit about practices which they consider negligent; others say this is for the court to decide. A distinction has to be made between practice which the expert witness considers poor and that which no competent professional would have considered acceptable. The fact that an expert witness would have chosen a different course of action is not sufficient to deem a decision negligent. If a body of opinion within the profession would have chosen a particular line of action, the action is acceptable.
Expert witnesses and report writers considering issues of possible professional negligence should know and understand the Bolam test[4]. This case lays down the typical rule for assessing the appropriate standard of reasonable care involving skilled professionals (e.g. social workers, occupational therapists, social care workers or registered managers). Where the defendant has represented him or herself as having more than average skills and abilities, this test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion. In other words, the Bolam test states that: If social workers (or other practitioner) reach the standard of a responsible body of professional opinion, then they are not negligent.

Professional Bodies

In its guidance on essential standards the Care Quality Commission has a schedule of professional registration councils and relevant expert and professional bodies in respect of adult social care. The General Social Care Council is to be replaced by the Health (and Social Care) Professions Council in July 2012 as the registration body for all social workers. Skills for Care is the custodian of the codes of practice for all other social care in England. The new College of Social Work has an emergent role across both adult and children’s social work.
The British Association of Social Workers and the Social Care Association are the pre-eminent professional associations

Appendix 5 – Expert Witness Statement

Brief CV or profile followed by:

I understand that my primary duty in providing written reports and giving evidence is to the Court, rather than the party who engaged me. The contents of this report are accurate and true to the best of my knowledge and belief. I have read the documentation provided, or sampled it where appropriate, and I have covered all the relevant issues concerning the matters which I have been asked to address. I have made it explicit when the information available is insufficient to form a clear opinion or when it is open to alternative explanations. I have indicated the sources of the information I have used. I have not included or excluded anything which has been suggested to me without forming an independent view. I will notify those instructing me immediately and confirm in writing if for any reason my existing report requires any correction or qualification.

I understand that my report, subject to any corrections before swearing as to its correctness, will form the evidence to be given under oath, that I may be cross-examined on my report, and that I am liable to be the subject of public adverse criticism by the Judge if the Court concludes that I have not taken reasonable care in trying to meet the standards set out above. I confirm that I have not entered into any arrangements whereby the payment of my fees is in any way dependent upon the outcome of the case.