Requests and Subpoenas to Give Evidence in Court

It conjures up all those reasons for not joining the high school debating team, compounded by the inconvenience – time spent waiting, lost billings, being cross-examined, and dealing with pesky lawyers. What’s not to like?

You can minimise lost costs and precious time by properly managing requests to appear in court. Understanding the process can make it more likely that you won’t have to appear, and less stressful if you do. Seeking early advice is important.

Request versus subpoena

Our general recommendation is for a doctor to attend by way of subpoena* to give evidence rather than a voluntary request. In civil matters this may assist in recovering the costs of appearing.

A request to appear in court is voluntary. It does not compel you to attend, and you can decline. It will be up to the lawyer to consider whether they will issue a subpoena. However, if you fail to appear after you have voluntarily agreed to do so, the lawyer may lodge a complaint with the Medical Board or you may be subject to an adverse court order (e.g. for costs). You might then be subpoenaed to give evidence in any event.

Doctors should carefully consider issues such as availability and fees for appearance before they voluntarily agree to appear (see below). If you are attending voluntarily at the request of a party other than your patient, you must not breach your legal and professional duty of confidentiality, and should not agree to give evidence without prior patient consent.

Subpoenas compel attendance. When giving evidence in court, a subpoena overrides your duty of confidentiality. If you fail to comply with a subpoena, a bench warrant can be issued, and you can be arrested and taken into court.

A request or subpoena does not mean you will need to appear

Many court matters are settled or withdrawn prior to a hearing. Dates may be moved because of delay, necessitating another subpoena. The need for a specific witness or a particular line of questioning may change. So while lawyers attempt to “lock in” all potential witnesses in advance, not all will be called. Our anecdotal experience is that only a small number of doctors who receive subpoenas to appear are eventually required to give evidence in court, but it is impossible to predict this in advance. The courts will generally try to accommodate a doctor’s availability within the hearing dates.

How can I improve my chances of not appearing?

Generally, this is outside your control. However, a poorly drafted police statement or report may create an issue that needs to be determined in court. Seeking MDA National’s assistance with drafting police statements or reports may reduce your likelihood of appearing in court. If you are able to identify what information is going to be sought from you, an offer to clarify this by way of statement may reduce the need for you to appear.

I have received a request to appear – what do I do?

Most importantly, do not ignore the request and do contact the requesting party. Given that the latter may be negotiating appearance dates and times with you, it pays to remain civil and keep communication lines open. Lawyers are only trying to do their job, and most are mindful of the disruption and inconvenience caused.

You may need to seek advice from MDA National, if appearing in court is something you are not familiar with.

Consider the following:

• Note the least convenient dates and times, e.g. procedural days may incur greater income loss. A range of available dates will make scheduling easier.
• Narrow down the timeframe of your appearance (morning, afternoon or a specific time) and see if you can give evidence by phone, video-link or on standby (if you are located close enough to the court to attend at short notice).
• Provide the requesting party with a contact number to reach you if the matter is delayed or resolved.
• Find out what else you should bring with you (e.g. clinical notes; any reports you have provided; a CV; anything else?) and what documents will be available to you.
• Enquire about the relevant issues and what you are likely to be asked in court. Remember that discussing patient care outside of court is limited by confidentiality. Consider whether you might be able to resolve these issues in advance by provision of a report.
• Contact the subpoenaing party a few days before the hearing to check on any last minute changes.

Recovery of your lost costs

Conduct money

The subpoena should come with conduct money, a nominal sum to cover basic travel expenses. Contact the subpoenaing party if long distance booked transport or accommodation is required. You may also be entitled to nominal daily witness appearance fees. Ensure you keep receipts.

Criminal matters

If you are subpoenaed to appear in a criminal matter, you may not be able to recover lost income (but the question is still worth asking!). It is seen as a “civic duty”. Employed doctors may be able to negotiate being paid by their employer if the matter arises from their workplace. Public prosecution departments will usually book your long distance travel or transport arrangements upon request.

Civil matters

In civil matters (one party suing another), you should carefully consider and prepare for recovery of any reasonable loss or expenses incurred in complying with the subpoena, including the possibility of cancellation at short notice. You can negotiate cost arrangements with the subpoenaing party in advance, but ensure this is agreed in writing. Disputes over cost recovery may require you to submit an application to the court, including supporting evidence. This submission will usually require some evidence of your actual costs (lost opportunity or incurred), and how they have been calculated.¹

Calculating rates

The AMA, your college, WorkCover guides and your colleagues may be able to provide a guide as to an appropriate hourly or daily rate for a court appearance. Alternatively, use a tally of the actual income you would have earned, including costs, to calculate a rate (court appearances are not generally GST exempt). Consider cancellations to appear at short notice (your unavoidable opportunity costs that you can’t recover – can you take on patients at short notice?). Detail what your cancellation costs will be with the appropriate notice times.

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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 Your Day in Court, A sample police statement, A doctor's guide to police statement for advice on how to handle a court appearance.

Reference

1. George v Biggs & Anor (No. 2) [2015] NSWDC 43. Available at: caselaw.nsw.gov.au/decision/552df7b8e4b0fc828c995c33