Calling the doctor-witness

As giving evidence at court can be a daunting prospect, Dr Ian Lavelle outlines a case scenario and provides advice

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.

What happens if you are called as a witness to court?

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.

Preparation for going to court

It is helpful to fully familiarise yourself with the case before attending court, as follows:

• Read through your report and ensure you are fully familiar with it.

• Review the medical records so that you are aware of the important facts of the case.

• Be clear who has called you to attend.

• Find out where the court is and how long it will take you to get there.

• Find out how long you will be needed for.

• Make sure the medical records and a copy of your report will be available at the court.

• Make sure you have adequate cover arrangements in place for the duration of your anticipated attendance.

On the day, you should:

• Dress professionally. In addition to being respectful, you are also likely to feel much more confident when giving your evidence.

• Get to the court in good time – there is nothing worse than rushing or arriving late.

• Take the medical records with you, if you have them, as well as a copy of your report.

• Expect to be kept waiting.

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

What happens?

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.

Tips on giving a successful performance in the witness box:

• Remember that you are impartial – your duty is not to one side or the other. You are there to assist the court.

• Speak clearly, using short sentences – try not to over-elaborate and explain any technical terms you may have to use.

• You are giving evidence to the judge/coroner/chair, so ensure that you face them when answering a question.

• Listen carefully to each question. Make every answer open, honest, and fair.

• If you don’t know the answer or understand the question, say so.

• Don’t lose your patience with the opposing counsel. Lawyers are working on behalf of their clients and disparaging comments can be a deliberate tactic – the best witnesses are those that remain neutral and focused.

• You can appeal to the judge if you feel that a question is improper, or if you would like to expand on your answer.

• Remember to take as much time as you need for each answer. A conscientious witness will pause for as long as necessary before speaking to ensure that they are giving evidence that really is “the truth, the whole truth, and nothing but the truth”.

It is advisable to contact your medical defence organisation if you receive a request to attend a hearing.