A week never goes by without a few calls to the MDDUS advice line from members facing an upcoming court appearance. Such appearances – be it an inquest or giving evidence at trial – are commonplace and involve doctors on a regular basis. Most often these are cases where our members are witnesses, not personally on trial or at risk of criticism.
Despite this, the thought of attending court can of course be daunting. This is only natural giving the unfamiliarity of the situation and the prospect of having to speak in public – but remember that for lawyers and other staff the court is just a place of work like a hospital or surgery.
If you receive a court summons/citation you must attend. A failure to do so may result in arrest for contempt of court.
One common source of anxiety is how your evidence will be viewed. Will you be criticised, grilled and left looking foolish? In a worst case scenario will you face some form of censure? These risks are best avoided by adequate preparation.
Remember that you are there to assist the court with information. You are not there to make a decision on behalf of one party or another – that rests with the judge/jury or coroner. The overriding duty is to the court, so you must be objective regardless of who cited or instructed you to attend.
Evidence begins with an affirmation or taking the oath. A witness box is a place of legal privilege and you cannot be accused of a breach of confidentiality when making disclosures in answer to questions put to you.
The natural dynamic in court is relatively slow paced. Lawyers take time to consider their questions; you can take time to consider your answer. There may be pauses between questions and answers, and often pauses after you have answered. If you have said all that you want to say, keep quiet and wait for the lawyer to ask their next question. Do not be tempted to fill the silence.
Always remain polite, answer clearly and ensure your voice can be heard. If you do not understand the question, ask for it to be repeated. Your answers must be truthful – which includes saying 'I don’t know' or 'I have forgotten' You can only give evidence that you are directly aware of and within your field of expertise.
Preparing for your appearance
Good preparation before court includes looking over your notes or reports and being prepared to explain your actions and professional opinion. It does not include trying to learn all the facts about a particular disease – giving evidence is not a medical test.
Doctors as a group try to be helpful but straying beyond the scope of your knowledge in court is wrong and can lead to difficulties if you are exposed as having gone too far. Be aware of the limits of your knowledge and stick to that. You can quite reasonably say that you can’t answer a question that falls outside of your sphere of expertise, offering, for example: '… you would need to ask a forensic pathologist'.
If it is pointed out that you may have made a mistake (such as with a date), carefully consider this and if you have made an error, admit this.
The GMC offers guidance as follows:
- The first duty of all witnesses is to the court.
- Give evidence that is impartial, honest and not misleading.
- Only give testimony and express opinions about issues that are within your professional competence.
- Work within the timescales set by the court.
There are a few other ground rules which can help: simple things such as make sure you know where you are expected to attend and when, and leave enough time so that you don’t add to your stress. Take along your court citation. Make sure you dress professionally and you may have to wait in the witness room for some time so take along something to occupy yourself.
Make sure you maintain your focus and attention. If you are very nervous remember that the first evidence you will be asked to give is easy – usually your name and status. Take your time, breathe normally and maintain your composure.
Finally, it is worth remembering that you are providing an invaluable service to the court and, while most doctors may be apprehensive about giving evidence, it is in most cases straightforward.
|Action points in court|
- Dr Gail Gilmartin is a medical and risk adviser at MDDUS