Giving evidence in court: What GPs need to know

Neelima Choahan

2/08/2018 2:25:55 PM

For the fourth of our series on legal matters in general practice, newsGP spoke with two experts regarding what GPs need to know about giving evidence in court.

GPs may be called as a medical witness to give evidence in court.
GPs may be called as a medical witness to give evidence in court.

Giving evidence in court can be a daunting experience, but knowing the protocols can help GPs navigate the legal system.

Sturt Le Grand, Le Grand Margalit Lawyers
Personal injury lawyer Stuart Le Grand says GPs should give evidence based on their treatment of the patient.

According to Mr Le Grand, a practitioner may be called as a medical witness to give evidence in court, and the evidence provided by doctors can assist the courts in making informed and fair decisions.
‘When acting as a medical witness, a GP’s role is to provide impartial evidence to assist the court,’ Mr Le Grand told newsGP.
‘A GP should not act as advocate for either party.
‘It’s not giving evidence against their own patient; their role is to give evidence based on their treatment of the patient.’
Mr Le Grand said the GP might be requested by the plaintiff or defendant, ordinarily by subpoena.
‘When receiving a request to attend by subpoena or otherwise, it is advisable for the GP to make contact with the requesting solicitor,’ he said.
‘It is good practice for the GP to provide their contact number to the requesting party so they can keep them updated as to what time to attend, if at all.’
Mr Le Grand said giving evidence can range from one hour to a whole day, or more.
‘It depends on the complexity of the case, the speed of the barristers and the court volume, or how busy the court is – every case is different,’ he said.
‘It is quite easy for GPs to feel aggrieved at having to attend court and give evidence. Solicitors understand that, but just be mindful that it is a vital function to get to the right outcome in the case.’
Before giving evidence
Mr Le Grand recommends GPs familiarise themselves with the patient’s notes, including any report they have written for either party, before giving evidence.
‘When you arrive at court, a GP, like any witness, is required to wait outside the courtroom until his or her name is called by the court staff,’ he said. ‘This is designed to ensure that the witness doesn’t hear evidence by other witnesses which may influence their evidence.’
Mr Le Grand said evidence is given in three phases: evidence-in-chief, cross-examination and re-examination.
‘The party who has required the witnesses attendance will ask the GP a series of questions based on the information contained in the medical records and/or report, often both,’ Mr Le Grand said.
‘The purpose of evidence-in-chief is for the GP to provide their evidence to the judge and/or jury. A judge can interrupt to ask questions of the GP to clarify issues.’
‘This will involve the opposing party asking probing questions with respect to the GP’s reports, notes and evidence-in-chief,’ Mr Le Grand said.
‘In a civil setting, it would be the barrister representing the insurer for the defendant, for example, in a car accident case.’
Mr Le Grand said GPs should only answer what they are asked.
‘There is no need to volunteer more information than they are asked,’ he said. ‘If the cross-examiner wants to know more, they will ask another question.’
If there is a break during cross-examination, including for lunch, the party who called the GP to give evidence cannot communicate with them without the consent of the other party.
Mr Le grand said, in this phase, the party who called the witness will clarify any issues with the GP that have arisen during cross-examination.
‘No new matter can be raised at this time,’ he said. ‘It is simply an opportunity to clarify issues that have already been examined.
‘At the conclusion of the re-examination, the judge will excuse the GP from court and they are free to leave.’
Tips for giving evidence
Mr Le Grand said in the Supreme Court, the presiding officer is known as a judge and should be referred to as ‘Your Honour’.
‘Avoid being argumentative, as it is quite common for a cross-examiner to attempt to provoke a witness,’ he said.‘I also caution against using humour and sarcasm, as a witness demeanour is relevant to decision-making by judges and jury.
‘When giving your answers, it is good practice to turn to the judge or the jury.’
In the event a party objects to a question, Mr Le Grand said, the GP should stop until the objection has been ruled on by the presiding judge.
Delays and cancellations
‘It is very common for cases to settle during the running of the case,’ Mr Le Grand said. ‘It might even be on the morning of court before you give your evidence.
‘While this is inconvenient to you, the attendance, preparation and readiness of a doctor can induce a settlement.’
Cases can also be delayed due to administrative reasons, such as the number of cases in the court list that morning.
‘Solicitors, barristers and judges are sensitive to the needs of medical practitioners and will try to accommodate where they can so as to cause to minimum interruptions to their practices,’ Mr Le Grand said.

Dr Sara Bird, Manager, Medico-legal and Advisory Services, MDA National

MDA National’s Dr Sara Bird says giving evidence is not like having a conversation, but rather GPs should only answer what is asked, as simply as possible.

Do you actually have to go to court?
Dr Bird told newsGP the key message is that even if a GP receives a subpoena there is still a high likelihood they will not end up giving evidence in court.
She said there are two types of matters where GPs may be required to give evidence.
‘Sometimes it will be a criminal matter, such as an assault case, where the GP has seen a patient who has been a victim of an assault,’ Dr Bird said.
‘The second type of case is a civil case, where one party is actually suing another party. A common example of that in a general practice setting would be a patient who had a WorkCover claim and there is dispute between the patient and the employer about the claim.
‘If it’s a criminal matter, there will often be a jury there, not just a judge. In civil matters, it will be just the judge.’
Duty to patient
‘You would not voluntarily agree to go to court unless it’s your patient’s solicitor who is asking you to do so,’ Dr Bird said.
‘In all other cases you would only do so under subpoena, because you owe a duty of confidentiality to your patient.’
According to Dr Bird, unless it is their patient’s solicitor, the GP should generally not discuss the details of the case with the solicitor who has called them to give evidence before sitting in the witness box.
Before attending court
‘Once they have called you and confirmed they definitely want you to turn up to court, it is worth reading the medico-legal report that you have prepared and familiarising yourself with medical records,’ Dr Bird said.
‘Generally, it is useful to take to court a copy of your medico-legal report that you have prepared and, depending on whether the medical records are going to be available in the court, you may want to bring a copy of the medical records.’
Witness box
Dr Bird said the court officer will take the GP to the witness box.
‘You will remain standing when you get into the witness box and you will be asked to take either an oath or an affirmation, and the court officer will go through all of that with you. You should remain standing until you have gone through that process,’ she said.
‘And then you will be asked to sit down in the witness box. Often the first question you get asked is, “Can you please give the court your full name and your qualifications?”
‘That’s quite nice because it gives you a chance to get over your initial nerves before you go into actually giving your evidence.”
Giving evidence
‘You have an overriding duty to the court. Your role is impartial and you are there to inform the court and help the judge or the jury to actually understand the evidence,’ Dr Bird said.
‘You are not there as an advocate for one side or the other. You are there just to provide the facts as you know them, and on occasion an opinion.’
Giving evidence is not like having a conversation.
‘You will be asked questions, you listen to each question and you pause and decide whether you are able to answer the question,’ Dr Bird said.
‘You only answer what is asked, as simply as possible. For example, if they held up a water bottle and said, “Do you know what this is?” the correct answer is, “Yes.”  You don’t say, “Yes, that is a water bottle.”.’
Dr Bird said that while it can be tempting to try to guess where the questions are going and what the next question will be, it is important to only focus on the question being asked.
‘If the question is not clear or if it is ambiguous, ask for an explanation or you can ask the barrister to repeat the question,’ she said.
‘Barristers often use a whole series of statements and questions which can be quite hard to remember or even follow, particularly when you are feeling nervous.
‘That’s fine; you just say, “Can you please repeat the question?”’
Dr Bird said it is common for a GP to be unable to answer the questions, either because they don’t know the answer or can’t recall.
‘If you are unable to answer the question, you just say so,’ she said. ‘It’s not like an exam where you are having a go at every question to try and get some marks.
‘You really want to avoid being overly helpful and wandering off topic.’
In Dr Bird’s experience, the court may occasionally ask the GP to give an expert opinion, and it is up to the GP to decide if they feel comfortable doing so.
Dr Bird said giving evidence is not a memory test, so a GP can refer to the medical-legal report or their notes in the witness box, but they first need to seek the judge’s permission.
‘For example, the barrister [might say] to you, “On page two of your report, Doctor, you have said that the patient fell over in Woolworths. Is that correct?” If you want to refer to the report and you haven’t been given the report in the witness box, you turn to the judge and say, “Your Honour, I have a copy of the medico-legal report with me. Can I please refer to the report?”’ Dr Bird explained.
A GP can generally only claim for travel expenses if subpoenaed to give evidence in a criminal matter by the police. But, in all other cases, the GP can negotiate a payment with the party who has issued the subpoena before attending court, which would generally be their hourly rate or their loss of income from the practice in having to attend court.
Cancellation fees
‘It is worth putting in cancellation fees as well, because matters are often cancelled with very short notice,’ Dr Bird said.
‘And if they get cancelled on the day, and you are about to drive to court and they ring you and say, “Oh, we don’t need you anymore”, the chances of you then being able to recover your costs by seeing patients when you have got nobody booked in for the day are low.’
Dress code
Dr Bird said courts are formal environments and GPs should dress conservatively in court.
Keeping calm
‘Doctors, quite understandably, can be nervous about giving evidence in court, particularly if it is the first time,’ Dr Bird said.
‘But remember, you are not the person who is on trial or the subject of the proceedings, you are not being prosecuted, and your role is to provide factual evidence based on your report and any recollection you have of your involvement in the patient’s care.’

cross examination medico-legal report

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