Not fit for court? Dr Sarah Hull, Medicolegal Consultant at Medical Protection, looks at a recent call to our advice line, where a GP was challenged over their support for a patient who said they were unfit to attend court.
A patient phones their GP and asks for an extension of their ‘sick note’ and a ‘to whom it may concern letter’, advising that she is not fit to attend court. The doctor obliges. Two days later, the GP receives a summons from the Crown Court to give evidence regarding the content of their letter and to justify the basis for their statement that the patient was unfit to attend court.
What is the purpose of a medical certificate for court?
Witnesses, jurors and defendants may request medical certificates to excuse their non-attendance at court. In the case of a defendant, a medical certificate may also be used to defend a charge of failure to surrender to bail.
A medical certificate is likely to be carefully scrutinised, as there is considerable pressure not to adjourn cases due to expense and delay incurred. The starting point for all tribunals and courts is that they should be reluctant to adjourn a hearing unless there is a good reason. A court is not bound to accept a medical certificate and the court may require the doctor who provides the certificate to attend court to give evidence. This would typically be in the form of a summons.
This is set out in the Criminal Practice Directions S5C.6: “Medical practitioners should be aware that when issuing a certificate to a defendant in criminal proceedings they make themselves liable to being summonsed to court to give evidence about the content of their certificate, and they may be asked to justify their statements.”
Failure to attend court when served a summons is a criminal offence and could result in arrest and being charged with contempt of court. Contempt of court is defined as “interference with the administration of justice” and is punishable by up to two years in prison, a fine, or both.
What should a medical certificate contain?
It is inadvisable to write a ‘to whom it may concern’ letter, as requested by the patient in this scenario. Doctors should have a clear understanding of the nature and purpose of the request and how the certificate might be used. In the case of certificates for court, it is advisable to determine the capacity in which the patient has been asked to attend court as this may inform your opinion on fitness to attend.
It is normal for a witness to be anxious about attending court to give evidence, and it is possible that with sufficient support they may be able to attend. Further adjournment and delay may merely exacerbate their anxiety. It is important to distinguish between inability to attend, for example due to severe physical disability or cognitive impairment, and risk of exacerbation of an underlying condition by attendance. In some situations, it may also be helpful to suggest an expert opinion, if the doctor feels uncertain about the potential impact on the patient’s health or is not sufficiently aware of potential adjustments that could be made. Increasingly, there is the option of remote evidence.
CPS guidance is that the following information should be included within a medical certificate:
- Date that the doctor examined the patient
- The exact nature of the patient’s medical condition
- The reason that the condition prevents the patient from attending court
- An indication as to when the patient is likely to be able to attend court, or the date that the current certificate expires.
GMC guidance regarding report writing: “You must be honest and trustworthy when writing reports, and when completing or signing forms, reports and other documents. You must make sure that any documents you write or sign are not false or misleading. You must take reasonable steps to check the information is correct. You must not deliberately leave out relevant information.
“You must be honest and trustworthy when giving evidence to courts or tribunals. You must make sure that any evidence you give or documents you write or sign are not false or misleading. You must take reasonable steps to check the information. You must not deliberately leave out relevant information.”1
In Scotland, doctors may be asked to provide a “soul and conscience” letter. This typically contains the wording “I certify this on soul and conscience” or “I certify and solemnly and sincerely affirm this to be true”.
When might a court determine that a medical certificate is unsatisfactory?
The court may disregard the medical certificate. In R v Ealing Magistrates Court Ex p. Burgess (2001) 165 J.P. 82, the defendant had submitted several medical certificates stating that he was unfit due to stress and anxiety. The court eventually took the decision to proceed in the defendant’s absence. It was noted that the defendant had appeared as a claimant in another court during this period. The defendant appealed, but it was found that the court had a discretion, which has to be exercised with proper regard to the principle that the defendant is entitled to a fair trial. This includes a fair opportunity to be present at his trial. In this case, the defendant had been given a fair opportunity.
CPS guidance provides the following scenarios in which a court may determine a medical certificate to be unsatisfactory:
- Where the certificate states that person is unfit to work, rather than specifying that they are unfit to attend court.
- Where the nature of the medical condition does not clearly prevent attendance at court. The example given is a broken arm.
- Where the person is certified as suffering from a condition such as stress or anxiety or depression and there is no indication that the person is likely to recover within a “realistic timescale”.
When asked to write a medical report, it is important to always be clear on the nature and purpose of the report and to whom it will be circulated. When providing reports for court, your role is to assist the court in the pursuit of justice, and so information must be accurate and objective. It is possible that you may need to attend court to justify your opinion, however, by providing information in line with the CPS guidance, the need for attendance may be minimised. If, in your view, the opinion of an expert may be of assistance, it is helpful to include this within your report:
"Support X application to be excused on the grounds of ill health.”
GMC, Good Medical Practice
Part 5C Criminal Practice Directions 2015
CPS Legal guidance, medical certificates
Sheriff Court Practice Notes GS Number 2 of 2018 Medical Certificates
1Good Medical Practice paras 71-72