You've received a subpoena... What next?
Katherine Greig, MPS Panel Lawyer and Director at MacRobert Attorneys, offers some practical advice on what to do if you receive a subpoena
Medical practitioners are occasionally called upon to provide factual evidence in court relating to their involvement in the treatment and management of one of their patients. Generally speaking, this is sought by means of a subpoena issued by the court concerned and served on the witness by the Sheriff of the Court.
A subpoena can be issued out of the following:
An Inquest Court (for example, where a practitioner treated a patient who
subsequently died and is called upon to
give factual evidence to assist the court in
making a finding regarding the cause of
- The Criminal Court (for example, in a case
of rape or assault where a practitioner may
have been involved in treating the victim)
- The Civil Court (for example, where a
practitioner may have treated a patient after
a motor vehicle accident and the injury is
the basis of a subsequent claim for
- Professional conduct hearings before the
HPCSA, CCMA hearings, Children’s Court
matters, and Family Court matters.
Consider the following scenario. Dr A, a specialist neurosurgeon, takes service of a
subpoena issued out of the High Court
requiring him to present on a particular date
to give evidence for the plaintiff in a civil trial. The plaintiff is Mrs B, who sought treatment
from Dr A for her painful back following failed
back surgery performed previously by Dr C.
She has instituted a civil action for damages
against Dr C, and needs Dr A to testify as to
what he observed when he assessed and
treated her to establish proof of what
damages she suffered.
In this case, Dr A is being called to give a factual account of his involvement in the
patient’s treatment and management, as well
as in regard to his personal observations of
the patient’s condition. He is not an expert
witness and will therefore not be paid “expert
fees” by the party calling him. He will only be
required to speak to the facts of his
involvement, and not to provide his opinions
regarding the treatment and management of
the patient by Dr C.
The first step: contact MPS
When a witness receives a valid,
issued and served subpoena, they
are obliged to comply with its
provisions. If they fail to do so, they can run
the risk of being held in contempt of court, with an accompanying fine or even a warrant
being issued for their arrest.
If you receive a subpoena, contact MPS as
soon as possible, as they may be able to
provide assistance assessing whether the
subpoena is valid, has been correctly issued
and served in good time, and then enter into
communications with the lawyer for the party
who issued the summons. In some situations,
this can lead to negotiations to ensure that
the practitioner is inconvenienced as little as possible. For instance, it might be arranged
that the practitioner is only required to ensure
they are available for specific days rather than
the whole trial.
The practitioner may not provide
information relating to the treatment
and management of their patient to
anyone or any party without the
patient’s express consent.
Similarly, in court, a
practitioner may not give evidence regarding
the treatment and management details of
their patient without express consent – unless
they are ordered to do so. This means that
when consent is withheld, the practitioner
must advise the presiding officer in court of
their obligation of confidentiality and of the
lack of patient consent, whereupon the
presiding officer may order them to proceed
to give the evidence.
Consulting with parties
If a patient subpoenas a practitioner
to give evidence as a factual witness,
the practitioner is allowed – but not
obliged – to consult with him/her in preparation
for the trial. Practitioners should therefore be
wary of being misled into thinking that they
must consult with the party subpoenaing him
before and/or during the trial.
If the practitioner refuses to liaise with the
party who subpoenaed them, it may
discourage the party from actually calling the
practitioner to give evidence in court as they
are unlikely to risk unfavourable evidence
A practitioner may receive a
subpoena “duces tecum”, which
means that they are not only required
to present themselves at court to give
evidence, but also bring certain specifically
identified documents when they testify.
Usually this refers to original clinical records.
If the practitioner does not have the patient’s
consent to disclose the records, then they
should only do so under protest when
ordered to by the presiding officer.
In some civil proceedings before the High
Court, a subpoena may also specify that the
witness hand the requested documents to
the Registrar of the Court “as soon as
possible”. Rather than lodging the original
documents in the court file, the practitioner
may choose to enter into an agreement with
the party subpoenaing him to provide copies
of the original documents directly to each of
the parties, with the originals to be taken to
the trial if necessary. In this situation, it is
always advisable to obtain the patient’s
consent first (where possible).
Should consent to provide the documents
remain withheld, then professional opinions
are divided with regards to whether the
practitioner would nevertheless be obliged to
hand the records to the Registrar before the
trial date. MPS will be able to advise you on
the right option in your particular case.
Being called upon to give evidence
invariably means that a practitioner
will have to spend time (and
sometimes a considerable amount) away
from their practice, and they may also be
required to travel.
Unfortunately, recompense for practitioners
doing civic duty, as provided for in the
relevant legislation and the Rules of Court, is
generally minimal. Reimbursements can be
sought for reasonable travel expenses,
accommodation and meal costs, as well as
for lost income; however, it is capped at a
modest nominal amount per day.
Whatever the reason for a subpoena being
issued, the onus on you remains the same: to
provide the court with a factual account, free
from bias or embellishment. If you have any
questions about your role and responsibilities,
contact MPS to talk through your concerns.