Medico-legal: Unfit for court certificates

MPS medico-legal adviser Dr Dan Kremer discusses requests for an unfit for court certificate.

The court may summon GPs to justisy certificates they have issued (iStock)
The court may summon GPs to justisy certificates they have issued (iStock)

Requesting a certificate

A patient with a history of depression and heavy drinking presents with a depressed demeanour and informs you he has been involved in a minor car collision. He tells you he has recently been drinking more, and after direct questioning, you believe he is moderately depressed and provide him with appropriate support and advice.

A few weeks later, he attends for review and tells you he is due in court the following day, charged with drink driving. His solicitor has suggested he requests a doctor's note to say he is unfit to attend court, as he feels he could not face the stress. What do you do?

Undoubtedly, you will want to help the patient and you may be concerned that any extra stress could be harmful.

GPs often write certificates advising patients to refrain from work for less serious conditions and it would be easy and conducive to the therapeutic relationship to agree to the request.

It seems a simple and practical application of clinical skills to write a certificate that states someone is unfit to attend court, but there are significant pitfalls to be aware of if you are to avoid a potentially difficult situation.

GPs who issue certificates are perhaps used to having their opinions accepted without question in most cases. However, when it comes to the justice system, courts often need to understand the detailed rationale behind the certificate to make a decision.

Writing a certificate

The Crown Prosecution Service states that a certificate should contain sufficient detail for the court to make a decision:

  • The date on which the GP examined the defendant
  • The exact nature of the defendant's ailment
  • If it is not self-evident, why the ailment prevents the defendant from attending
  • An indication as to when the defendant is likely to be able to attend court, or the expiry date of the certificate.1

Stressed patient

In the case of R v Ealing Magistrates Court Ex p Burgess (2001), a man was due to be tried for harassment.

His GP provided a certificate stating that he was unfit to attend court, due to stress.

The hearing was adjourned, at significant cost and inconvenience to those involved, and subsequent hearings were adjourned as the GP issued repeat certificates.

Eventually, the court lost patience and on learning the patient had been attending another court as a claimant, decided to hear the case in his absence, in spite of the certificate.

The patient challenged this in the High Court, where the judges agreed with the magistrates. They said: 'The court has a discretion which has to be exercised with proper regard to the principle that the defendant is entitled to a fair trial. That includes a fair opportunity to be present at his trial.

'However, the words are "fair opportunity", not "unlimited opportunity", otherwise it would never be possible to proceed in a defendant's absence and a defendant would be able to postpone trials indefinitely without the risk that the court would eventually be able to say "enough is enough, we will proceed in his absence".'

To determine whether a certificate is satisfactory, the court may decide to question the GP who provided it. The doctor may be summonsed to give evidence and would need to justify the opinion given.

It might also be sensible to state clearly whether the patient is truly incapable of attending court due to illness, either physical or psychiatric, or whether it would be inadvisable because of the risk of discomfort or exacerbation of a condition.

When writing the certificate, GPs should make it clear they are giving an opinion, and the opinion is to help the court decide whether to require the patient to attend.

Clinical findings

It is prudent to differentiate clearly between what the patient told you and your objective clinical findings.

For example, if a patient did not attend a bail hearing because of severe abdominal pain, but did not present to you until after the event, writing 'the patient had severe abdominal pain' would invite the court to question how you know this. It is more accurate and justifiable to say 'the patient gave a history of having severe abdominal pain'.

In the case of the patient charged with drink driving, the GP should not feel pressured into stating the patient is unfit to attend court, when a less definitive but more detailed certificate may be more appropriate.

You might wish to state that you believe the patient to be moderately depressed and the patient's condition could worsen if he were to attend, but he will be monitored and the court will be informed when he is fit to attend.

Careful consideration of requests for certificates, and careful wording of the certificate, should limit the risk of having to appear in court to justify the contents and limit the risk of criticism for being too ready to acquiesce to the patient's request.

  • Dr Kremer is medico-legal adviser at the Medical Protection Society

Reference

1. Crown Prosecution Service. Issuing of Medical Certificates.

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