Giving evidence in court - tips and traps for medical professionals who may be called on as an expert witness12 April 2019 | Health Sector
A medical practitioner may be called as a witness to give evidence in court, and the evidence provided by doctors can assist the Court in making informed and fair decisions. Giving evidence in court can be a daunting experience, but knowing the protocols can help medical practitioners to navigate the legal system.
When acting as a medical witness, a medical practitioner’s role is to provide impartial evidence to assist the court. A medical practitioner should not act as advocate for either party. They are not the advocate for the person who is paying their invoice nor for the person who was their patient. Their duty is to the Court, and a failure to recognise this may lead, in extreme circumstances , to a doctor being held in contempt of court in relation to the evidence they give (or don’t give).
The medical practitioner might be requested by the plaintiff or defendant to provide an opinion as an expert or may be compelled to appear by service of a subpoena.
When receiving a request to attend by subpoena or otherwise, it is advisable for the practitioner to make contact with the requesting solicitor. It is good practice for the medical practitioner to provide their contact number to the requesting party so they can keep them updated as to what time to attend. Doctors are entitled to conduct money which may disappointingly fall well short of their usual hourly rate. At the end of the day the minimum rate is all that is required to be paid.
Giving evidence can range from one hour to a whole day, or more. It depends on the complexity of the case, the speed of the barristers or how busy the court is – every case is different.
It is quite easy for medical practitioners to feel aggrieved at having to attend court and give evidence. Solicitors understand that, but just be mindful that it is a vital function to get to the right outcome in the case.
Do you actually have to go to court?
Even if a medical practitioner receives a subpoena there is still a high likelihood they will not end up giving evidence in court.
There are two types of matters where a medical practitioner may be required to give evidence in person:
- Sometimes it will be a criminal matter, such as an assault case, where the medical practitioner has seen a patient who has been a victim of an assault. In this case, there will often be a jury, not just a judge.
- A civil case is where the parties cannot agree on the medical evidence being admitted, and it is therefore necessary for the doctor to give evidence in person. In civil matters in Queensland, there will be just the judge.
Courts are formal environments and medical practitioners should dress conservatively in court.
Doctors, quite understandably, can be nervous about giving evidence in court, particularly if it is the first time. But remember, you are not the person who is on trial, nor the subject of the proceedings. Unless you are being prosecuted, it is your role to provide factual evidence based on your report and any recollection you have of your involvement in the patient’s care.
What should a practitioner do before giving evidence?
Practitioners should familiarise themselves with the patient’s notes, including any report they have written for either party, before giving evidence. If not provided in the brief or otherwise, doctors should ask for a copy of that part of the court rules which regulates the way in which they are to give evidence.
What should a practitioner do when providing evidence in person?
When you arrive at court, a medical practitioner, like any witness, is required to wait outside the courtroom until his or her name is called by the court staff. This is designed to ensure that the witness doesn’t hear evidence lead by other witnesses which may influence their evidence.
The court officer will take the practitioner to the witness box where they will remain standing and asked to take either an oath or an affirmation. The court officer will go through this process with you, and you should remain standing until you have finalised the process.
Once you've been seated, often the first question you get asked is, “Can you please give the court your full name and your qualifications?” This gives you a chance to get over your initial nerves before you go into the giving your evidence.
You have an overriding duty to the court - your role is impartial and you are there to inform the court and help the judge or the jury to understand the evidence.
You are not there as an advocate for one side or the other - you are there to provide the facts as you know them, and on occasion an opinion.
Giving evidence is not like having a conversation. You will be asked questions, you listen to each question and you pause and decide whether you are able to answer the question. You only answer what is asked, as simply as possible. For example, if they held up a water bottle and said, “Do you know what this is?” the correct answer is, “Yes.” You don’t say, “Yes, that is a water bottle.”
While it can be tempting to try to guess where the questions are going and what the next question will be, it is important to only focus on the question being asked.
If the question is not clear, or if it is ambiguous, ask for an explanation or you can ask the barrister to repeat the question.
Barristers often use a whole series of statements and questions which can be quite hard to remember or even follow, particularly when you are feeling nervous. That’s fine - you just say, “Can you please repeat the question?”
It is common for a medical practitioner to be unable to answer the questions, either because they don’t know the answer or can’t recall. If you are unable to answer the question, you just say so. It’s not like an exam where you are having a go at every question to try and get some marks. You really want to avoid being overly helpful and wandering off topic.
The court may occasionally ask the medical practitioner to give an expert opinion, and it is up to the medical practitioner to decide if they feel comfortable doing so.
Giving evidence is not a memory test, so a medical practitioner can refer to the medical-legal report or their notes in the witness box, but they first need to seek the judge’s permission. For example, the barrister might say to you, “On page two of your report, Doctor, you have said that the patient fell over in Woolworths. Is that correct?” If you want to refer to the report and you haven’t been given the report in the witness box, you turn to the judge and say, “Your Honour, I have a copy of the medico-legal report with me. Can I please refer to the report?”
How is evidence given? The three phases of evidence
Evidence is given in three phases: evidence-in-chief, cross-examination and re-examination.
The party who has required the witnesses attendance will ask the medical practitioner a series of questions based on the information contained in the medical records and/or report, often both. The purpose of evidence-in-chief is for the practitioner to provide their evidence to the judge and/or jury. A judge can interrupt to ask questions of the expert to clarify issues.
This involves the opposing party asking probing questions with respect to the expert’s reports, notes and evidence-in-chief.
In this phase, the party who called the witness will clarify any issues with the expert that have arisen during cross-examination.No new matter can be raised at this time - it is simply an opportunity to clarify issues that have already been examined. At the conclusion of the re-examination, the judge will excuse the expert from court and they are free to leave.
Tips for giving evidence
- In the Supreme Court, the presiding officer is known as a judge and should be referred to as ‘Your Honour’.
- Avoid being argumentative, as it is quite common for a cross-examiner to attempt to provoke a witness. Avoid using humour and sarcasm, as a witness demeanour is relevant to decision-making by judges and jury.
- When giving your answers, it is good practice to turn to the judge or the jury.
- In the event a party objects to a question, the expert should stop until the objection has been ruled on by the presiding judge.
A medical practitioner can generally only claim for travel expenses if subpoenaed to give evidence in a criminal matter by the police. But, in all other cases, the medical practitioner can negotiate a payment with the party who has issued the subpoena before attending court, which would generally be their hourly rate or their loss of income from the practice in having to attend court.
Delays and cancellations
It is worth putting in cancellation fees as well, because matters are often cancelled with very short notice. It is very common for cases to settle during the running of the case. It might even be on the morning of court before you give your evidence. If they get cancelled on the day, and you are about to drive to court and they ring you and inform you you're no longer needed, the chances of you then being able to recover your costs by seeing patients when you have got nobody booked in for the day are low. While this is inconvenient to you, the attendance, preparation and readiness of a doctor can induce a settlement.
Cases can also be delayed due to administrative reasons, such as the number of cases in the court list that morning.
Solicitors, barristers and judges are sensitive to the needs of medical practitioners and will try to accommodate where they can so as to cause to minimum interruptions to their practices.
Want to know more? Listen to our medico-legal podcast, The Checkup, which includes an episode dedicated to this topic!