As a doctor, you may be asked to give evidence in many different types of tribunals, including criminal or civil courts, the coroner’s court and employment or mental health tribunals. This factsheet gives further information about what to expect and how to prepare.
If you are called as a witness, 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 case, it is important to stick to the facts, and not to stray into providing opinion beyond the scope of your expertise.
Going to court
You will usually be put on notice that your attendance is required, and asked beforehand for dates that are convenient to you. If you are served with a witness summons or subpoena, you must attend at the specified time and for a set duration.
You must comply with a witness summons, otherwise you risk being found in contempt of court – this is a criminal offence and might, in addition, be reported to the Medical Council. If you believe that you have a legitimate reason for being unable to attend, you should seek advice from Medical Protection.
Disclosure of confidential information
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 patients’ 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
- Read through your report
- Review the medical records
- 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 will be available at the court
- Make sure you have adequate cover arrangements in place.
On the day:
- Get to the court in good time
- Take the medical records with you, if you have them
- Expect to be kept waiting.
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.
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.
The purpose of the examination-in-chief is to make your evidence clear. The lawyer for the party which called you will take you through your evidence. The judge may wish to ask you questions to further clarify your evidence at this stage.
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 could 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/chairman, 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”.