Your Day in Court

The most important point to remember is that you are not on trial – you are just a conduit for information to be provided to the court for their decision-making.

Your duty to the court

Your overriding duty is to the court, not your patient or another party. You will be asked to swear an oath (a religious-based declaration) or affirmation (non-religious) on the truth of your testimony. Failure to tell the truth can result in perjury charges. Under subpoena,* your duty of confidentiality is overridden by your duty to the court.You should also be familiar with the documents you have brought or are expecting to discuss. You can request a copy of documents tendered to the court to be provided to you while giving your evidence.

Responding to questions

You may be asked questions by all parties, in turn, usually put to you by the barrister representing the party. Occasionally, you will be questioned directly by self-represented parties (more commonly in family court matters). Be courteous and listen. Sarcasm, denigration and anger have no place. Barristers are skilled at what they do and provoking you may be part of their plan. If there is an objection, stop what you are saying and wait for the court’s direction.

Listen carefully to the question and consider what is being asked before responding. Get the barrister to rephrase convoluted and lengthy questions. Avoid being overly helpful or wandering off the topic. The lawyers will ask more questions if you haven’t provided enough information. Don’t try to second guess where the questions are heading.

Cross-examination can be daunting. Your credibility may be tested. Closed ended (yes/no) questions may be asked. You can seek court direction if the question cannot be safely answered with yes or no. Just because you are repeatedly questioned on a point does not mean your position is wrong – it might just be inconvenient for that party.

Only answer what is asked and as simply as possible.

Q:     “Do you have the time?”

A:     “Yes” (as doctors, we may want to say, “Yes, it is quarter to four on Monday 1 December”)

Giving opinions as a “fact witness”

Treating doctors are usually being called as a witness of fact which involves describing what you observed and experienced, based on your recollections and records. Try to specifically differentiate sources of information (e.g. “the patient said”; “the police officer informed me”; “the hospital discharge summary indicated”) if you did not directly observe what you are discussing.

Because of their professional training and experience, doctors can offer opinions within their areas of expertise. Where you are asked for an opinion, you are not compelled to provide one, and there may be good reason not to (so don’t guess). Opinion evidence may be quite contentious and lead to further cross-examination.

Consider these points before responding:

• Do you have sufficient facts on which to form an opinion – “I would need to know … before answering”
• Do you have appropriate expertise to give an opinion – “I don’t have the relevant expertise to answer that”
• Has your opinion changed – “At the time my opinion was … however based on [additional facts; further consideration; further learning and development] my opinion is now that …”
• It may be that a more balanced opinion should be provided by someone objectively independent and impartial to the patient’s care, particularly if it will affect ongoing care.

Dr Julian Walter
Medico-legal Adviser
MDA National

* Subpoena is used in this article to refer to any order to attend court, such as a summons.

See also the article Requests and Subpoenas to Give Evidence in Court, A sample police statement and A doctor's guide to police statements for more information.