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Acting as a medical witness in court

18 Dec 2020
In New Zealand, it is not uncommon for doctors and other health professionals to be summoned to appear in court, for cases relating to patients they have seen. This commonly occurs in the context of clinicians working in the Emergency Department who may see patients that have been a victim of crime. There can also be various other reasons, such as when a will is being disputed and the clinician is asked to testify on the patient’s competence at the time the will was drawn up.

This is a different situation from giving expert testimony in a case, where a doctor is asked to give an expert medical opinion on a case they were not directly involved in. Being a witness in court can be an intimidating and unfamiliar experience and many clinicians seek our advice regarding the court process and how to conduct themselves. The aim of this factsheet is to address the questions Medical Protection are commonly asked, but if you are a member and want specific advice, please do call us on 0800 225 5677 to talk to one of our advisers.

I don’t want to go to court – do I have to go?

If you are summoned to appear in court, you must go or risk being found in contempt – an offence for which you can be arrested and brought to court, or fined up to $1,000, unless you have a reasonable excuse. However, it is possible to approach the lawyer who has asked you to appear and ask if you can provide them with an affidavit as an alternative to appearing in person. An affidavit is a document that sets out your evidence in written form and is witnessed by a person authorised to take a declaration. 

In some situations, the lawyer may be happy to receive your evidence in written form, but if they still wish you to appear and serve you with a summons, then you have to go. If you are in a different city, you can ask to give your evidence by video link, but it is up to the court whether they agree to this. Even if you are planning to appear in person, it is a good idea to contact the lawyer who has issued you with the summons to find out what they are wanting from you and what some of the questions may be. 

How long will it take, and can I choose a time that is convenient to me?

In general you have to appear when you are told, but the court may appreciate that you have patients in your clinic who need to be seen, so it is appropriate to ask the lawyer if you can be called as the first witness in a session, which at least will give you some hope that you can plan your clinics around your court appearance. However, it is not uncommon to spend some time waiting outside court for your turn to appear and it can be useful to ask the lawyer involved how long they think your appearance may take – although this will only ever be a rough estimate. It is often best not to have anything important planned for the rest of the day and to ensure that you have cover arranged for your patients.

Can I take the patient’s notes or other documents with me?

It can be helpful to ask the lawyer who has given you the summons whether or not you are allowed to bring the patient’s notes into court. If they confirm this is appropriate, a practical approach to using your medical notes is as follows:

• Bring any contemporaneous records you have with you and inform the lawyer calling you as a witness that you will be doing so.
• If you wish to consult your contemporaneous notes before answering a question, turn to the judge and say something along the lines of: “I have with me the notes that I made at the time, may I refer to these to refresh my memory before answering?” The judge will then take over determining whether it is okay for you to refer to the notes. This will probably involve you needing to answer some questions about what the notes are and when they were made, as well as letting the other side see the notes (if they haven’t already) before you are allowed to refer to them.
• It is important to be familiar with the content of your notes prior to your appearance so you can be confident in your responses. It can be helpful to put markers in the notes at important sections so you can find them quickly. 

Separate from refreshing memory, if you are being asked questions about a document (for example, a hospital policy or X-ray report), it is okay to ask whether it is possible to be shown a copy of the document before answering.

Can I have a lawyer with me? 

In general, as a witness you cannot have legal representation in the court. This is different in a coroner’s court where, if you are named as an interested party, you may be represented by a lawyer. If you are in this situation you should notify Medical Protection as soon as you are made aware of your involvement.

How do I prepare for my court appearance? 

• Turn up at court in plenty of time, so you are ready to appear when called.
• Wear smart, professional attire.
• Read the notes or any statements you have made beforehand to refresh your memory.  
• Get a copy of any police statement you have given on the matter, as it is important that your evidence is consistent with what you said in the statement. If you have since discovered that something you said in the statement is incorrect, you should seek help from Medical Protection to have your statement retracted and a new one provided to the court. 
• You must not discuss your evidence with other witnesses.

What is the process for giving evidence? 

When you enter the witness box first you will be asked to affirm that you will tell the truth. You may be asked if you would like to swear on a holy book, but this is not compulsory. 

The lawyer who called you as a witness will ask you to tell the court your full name and occupation. That lawyer will then ask you questions to draw out your evidence (this is called evidence-in-chief). In a civil case, you may be asked to read your evidence from a previously prepared statement. 

You may then be cross-examined by the lawyer for the other side, who may test your story or  question aspects of your opinion. 

The first lawyer can then re-examine you to cover any issues that were raised in the cross-examination. 

The judge may also ask you questions. 

A lawyer may object to the other lawyer’s question, or to what you are saying in the witness box. If an objection is raised, stop and wait for the judge to decide whether you should answer the question or continue with your evidence. 

If you wish to leave the court as soon as you have given your evidence, tell the lawyer or police officer handling the case beforehand, so they can ask the judge to excuse you from court. 

What about doctor/patient confidentiality – do I have to answer all questions? 

In general, you have to answer all the questions that are posed to you in court. However, you do not have to answer a question that may incriminate you. When you are being asked questions in court, generally the court has already been provided with a copy of the patient notes, so there is no risk of a privacy breach. 

Doctor/patient confidentiality does not usually apply in the court setting, except to information obtained by medical practitioners and clinical psychologists in relation to a person who is seeking treatment for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct. If you are not sure that it is appropriate to answer a question, you can turn to the judge and ask them if you are required to answer that question by the court; if the judge confirms that you do have to answer, then you should do so. 

Is there anything I need to be careful about when answering questions?

Tell the truth 

It’s okay to say if you don’t remember. Don’t guess if you’re not sure. It is a crime to lie or conceal the truth. It is also important to remember that in the court setting, you are not acting as your patient’s advocate – your testimony must be unbiased. 

Listen carefully and just answer the questions posed to you; don’t expand on them

If the lawyer needs more information, they can ask further questions, but it can be unwise to expand on your answer, or answer questions that you have not been asked. If there is a silence, don’t feel obligated to fill it, just wait for the next question. Try to make any explanation of medical terms or procedures as simple as you can, so that you can be understood by the non-medical people in the court. If you don’t understand a question, ask for clarification. If you need to think about your answer, let the judge know that you would like a minute to consider that question before answering. When you are answering questions, even though they are being posed by the lawyer, give your response to the judge and make eye contact with them.

Stay calm

Try to avoid expressions that may come across as arrogant or aggressive. It is helpful to answer in a confident tone, which emphasises your expertise and knowledge of the facts.

Keep your medical opinions within the scope of your practice

Although you are not there as an expert witness, the court may call on your expert medical knowledge and, in that situation, the lawyers may want you to answer questions that are outside your area of expertise or above your level of experience. For example, they may ask your opinion on what kind of weapon may have caused a wound. If you are an experienced emergency physician, or a forensic pathologist, you may be able to comment on such an issue, but if you are not in that area of specialty, it is best to decline to answer and explain that such an opinion is outside your area of expertise. 

What if I am feeling pressurised into answering a question I don’t think is correct or appropriate? 

Stay calm – remember you are not the one on trial. Speak slowly and clearly. The lawyer may be wanting you to say something you don’t want to say, but don’t get flustered or angry. If you feel you are being bullied, turn to the judge and explain why you can’t answer that question, or that you have already answered to the best of your ability. Don’t make jokes or be sarcastic in your answers.

Will I be paid? 

Unless you have been engaged as an expert witness, you will not generally be paid to appear in court. However, you may be able to claim some expenses. An employer is obliged to give you time off work when you are required to appear as a witness, but they are not obliged to pay you for the time you are away. However, it may be possible for DHB employees to be paid as special leave for the time they are appearing in court. 

This factsheet has provided general advice for appearing as a witness in court. We encourage any member who needs more specific information, or who would like to discuss the details of a case with a medicolegal consultant, to contact Medical Protection on 0800 225 5677.