As giving evidence at court can be a daunting prospect, Dr Ian Lavelle outlines a case scenario and provides advice
Dr V, a GP trainee, received a witness summons to provide evidence at family court. As part of her GP training scheme, Dr V had previously worked in paediatrics in the local public hospital. She had been involved in the care of a seven-year-old boy. During the patient’s admission, safeguarding concerns had been raised, as the patient had bruising consistent with non-accidental injury. After investigation by Tusla, the child had been placed in the temporary care of his maternal grandparents.
Dr V’s role at the family court was as a ‘witness to fact’, regarding her involvement in the patient’s care as an inpatient. The court asked Dr V to send in the statement she had already prepared, so that they could review this and discuss in more detail what to expect at the family court.
As a doctor, you may be asked to give evidence in many different types of hearings throughout your career. These may include the family, criminal, civil or coroner’s court, or an employment, mental health or fitness to practise tribunal.
If you are called as a witness, it may be helpful to remember that your role is to provide impartial evidence to help the court reach its decision. You will either be required as a professional witness to supply factual information obtained in your capacity as the treating doctor in a particular case, or as an expert witness to provide an independent opinion on the facts of a case that you have not been personally involved in. In either scenario, it is important to stick to the facts, and not to stray into providing opinion beyond the scope of your expertise.
You will usually be put on notice that your attendance is required and asked beforehand for dates that are convenient to you. However, if you are served with a witness summons or subpoena, you must attend at the specified time and for the set duration. If you do not comply with a witness summons, you risk being found in contempt of court – this is a criminal offence and might, in addition, result in you being reported to the Medical Council. If you receive a witness summons but believe that you have a legitimate reason for being unable to attend, you should seek advice as soon as possible from Medical Protection or your medical defence organisation.
It is worth mentioning that your duty of professional confidence is not automatically waived by being called to give evidence; therefore, you should not disclose or discuss confidential information without the patient’s express consent. If you are asked for this information, you should explain that you do not have the necessary consent to provide it and await the direction of the court. Furthermore, if you perceive any conflict of interest on your part you are obliged to make this known. However, you must disclose information when ordered by a judge in a court of law, or by a tribunal or body established by an Act of the Oireachtas.
It is helpful to fully familiarise yourself with the case before attending court, as follows:
The procedure is fairly similar for civil and criminal courts. The claimant in a civil action or the prosecution in a criminal trial will put their case first. Their witnesses will give evidence and be cross-examined; once this has happened, the other side will respond. After the evidence has been heard, both parties will make closing speeches and the judge will sum up the evidence.
In a civil case, the judge will decide, on the basis of the law and the evidence presented, whether to find in favour of the claimant or the defendant. In most cases, the judge will also decide on the level of compensation that should be paid. In a criminal case, the judge will sum up the evidence and advise the jury on the law to be applied. The jury will then deliberate on the facts and give their verdict.
Whether you are giving evidence at a civil or criminal court case, the processes start off in a similar way. When it is your turn to give evidence, you will be shown to the witness box. A court officer will ask you to swear that the evidence you are about to give is the truth.
You will firstly undergo what is known as the examination-in-chief, the purpose of which is to make your evidence clear. The lawyer for the party that called you will take you through your evidence. The judge may wish to ask you questions to further clarify your evidence at this stage.
You are then likely to be cross-examined, during which the lawyer acting for the other party will question you about your evidence. Remember: Their role is to draw attention to any contentious issues of fact or opinion.
After the cross-examination has finished, the lawyer that called you may wish to re-question you to clarify any issues that may have been raised during the cross-examination. Once this has happened, the judge may wish to question you.
It is advisable to contact your medical defence organisation if you receive a request to attend a hearing.
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