- A professional witness testifies to the facts of a case.
- The role is different from the expert witness.
- Evidence is given under oath in court.
- A standard fee is payable.
The professional witness
Doctors can expect to be called to give evidence as a professional witness several times in their career, by many different types of court, including:
- civil court
- criminal court
- coroners' court (inquest)
- employment tribunals.
A professional witness helps the court establish the facts. They may be called to give first-hand oral evidence of a patient consultation or contact in which they were acting in their normal professional capacity. Many of the facts are noted in the patient's records.
They may also be asked by the court to give their professional interpretation of the facts.
Voluntary attendance or summons
A professional witness may give evidence voluntarily, or be compelled to give evidence (summonsed).
A doctor may prefer to be summonsed when there are issues of confidentiality and consent to disclosure, such as:
- you are asked to appear by a third party
- evidence is being sought against the patient's wishes
- your evidence may be against the patient's best interests.
Normally, a non-negotiable fee is payable. If summonsed, 'conduct money' (in effect, travel costs) will also be paid.
The summons must be properly issued and accompanied by conduct money. If you are in any doubt whether the summons has been properly issued, please contact us for advice.
When giving evidence, you should focus on your observations and understanding of the case, and any relevant clinical history the patient gave you. The court does not want a word-for-word account of what the patient told you.
You may refer to the original patient records while you are on the witness stand. You will probably not be allowed to look at any non-contemporaneous records or reports. It is therefore advisable to read your written report again carefully before the hearing.
You will be questioned by barristers. You should look at them when they are asking a question then address your answer to the judge or tribunal and the jury if there is one.
Answer only the questions as they are put to you. Often, a simple yes or no answer is sufficient.
The questioning may be repetitive. Maintain your professional composure and answer each question.
The court may challenge your evidence on cross-examination. You must be prepared to explain what you found, and also what you asked and looked for but failed to find. It is acceptable to do this from memory, or to describe your usual or normal practice.
You should not be afraid to say that you don't know the answer to a question or admit that something is outside your level of experience or expertise.
Maintaining patient confidentiality
Even when under oath, a doctor has a duty to protect patient confidentiality. You may not breach confidentiality unless the presiding officer of the court directs you to do so. A barrister or solicitor cannot compel you to breach confidentiality, either before or during the hearing.
This guidance was correct at publication 04/09/2014. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.