Voluntary or summoned attendance
If you're asked to attend as a witness and the patient has provided consent for you to disclose information to the court, you can agree to attend voluntarily. If so, you may be given some choice about the date or time of your attendance.
However, if you don't agree to attend on a voluntary basis (for example, because you do not have consent from the patient), you should inform the requesting solicitor accordingly and you may be summoned or subpoenaed to attend.
Never ignore a summons or other formal court papers delivered to you, as this could lead to contempt of court proceedings with possible criminal sanctions (and the likelihood of referral to the Medical Council). If you are unsure whether a summons or court order applies specifically to you, or to documents you possess, contact the MDU for advice.
Referring to documents while giving evidence
While you are giving oral evidence as a witness of fact, the court will probably allow you to refer to the original contemporaneous paper records, or a copy of the electronic record, while you are on the witness stand.
It may be helpful to take copies of the records you'll want to refer to in a folder, organised so you can find the relevant parts quickly while you are on the stand.
The court will probably not allow you to look at any non-contemporaneous records or reports. This applies to any you may have written at the request of the patient's own solicitors to submit to the court and on which you may be cross-examined, such as your witness statement.
As it may have been some time since writing the report, it is advisable to read it again carefully before the hearing. In doing so you may find it helpful to refer to the contemporaneous clinical records at the same time, so you can easily navigate them when giving oral evidence. It does not create a professional impression to be seen rifling through records to find something you recollect was there.
Patient confidentiality
- Even when giving evidence under oath in court, a doctor still has an ethical duty to seek to maintain patient confidentiality.
- This can arise, for example, where questions about a patient's past medical history might not seem immediately apparent to you as being relevant to the issues the court is considering.
If a question is asked that you believe may have to breach confidentiality, you should turn to the coroner, presiding magistrate, judge or chairman of the tribunal and explain your difficulty. The judge will determine whether something is relevant and whether you must therefore answer the question put to you.
If the presiding officer of the court directs you to answer, then, and only then, must you do so, even though you do not have consent from the patient. The solicitor or barrister acting for either side in a case does not have authority to compel you to breach confidentiality - either before or during the hearing.
Giving evidence
- The court is principally interested in what is called 'first-hand evidence'.
- This means it wants you to concentrate on what you personally observed, said or did, rather than what you may have been told by someone else.
Your understanding of a case and the interpretation you place on your examination will, however, have been influenced by the history given to you by the patient, so you will need to give the court an account of this where relevant.
It is important to bear in mind that your evidence of what you were told is only evidence that you were told something. It is not evidence that what you were told was true as a matter of fact. Weighing evidence to determine what is true, or likely to have happened, is a matter for the judge or jury.
Being challenged
If your evidence is challenged, it may be on the basis that you failed to put yourself in a position to make an adequate assessment of the patient. You must be prepared to explain not only what you found, but also what you asked, and what you looked for but failed to find.
Your contemporaneous notes are unlikely to contain this kind of 'negative' symptom or sign. No one expects you to make copious clinical notes of every last detail, nor will you be expected to remember every detail of a consultation that at the time appeared to be routine, and which may have been one of hundreds of similar cases that you have dealt with in the intervening time.
It is quite acceptable to quote from memory as long as you have a clear and genuine recollection of events. If you cannot recall the details of a particular case, it is acceptable to state what your 'usual' or 'normal' practice would have been in the circumstances. Sometimes you simply may not be able to answer a question and you should not be afraid to say 'I don't know'.
Answering the questions
Address your answers primarily to the judge or tribunal (and the jury, if one is present), and then look directly back at the barrister when they are asking the next question. The courts want an answer that is concise and to the point. On the whole, the more succinct the answer, the better it will be.
Often a simple 'yes' or 'no' will suffice. It is the job of the barristers or advocates to ask further questions and to gain all the information the court wants from you. Questioning may sometimes seem repetitive, but you are expected to respond to each question and to retain a focused and professional composure. The courts expect witnesses to answer only the questions put to them.
After the hearing
Appearing in court can be a challenge and a stressful experience. But it is also a facet of professional practice and the more prepared you are, the better. If your clinical role is likely to require you giving evidence on a frequent basis, you may want to undertake specific training for the role.
If it is an isolated experience, you may still wish to reflect upon it as part of maintaining your professional competence. As an example, see the ICGP Professional Competence Scheme Guide (2014), page 9: Example of how a personal learning activity could be recorded.
This page was correct at publication on 08/03/2021. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.