By Kathy Gough
Team Leader, Claims, Avant Mutual Group Limited
Health professionals may become involved in the court process as a party whose conduct is being examined, as a factual witness regarding the health-care or treatment of a patient, or as an expert. It is important that prior to giving evidence, the health professional understands their role in the case.
They should also be clear about the forum in which the evidence will be heard and the rules that will apply. In Australia, civil and criminal trials are adversarial processes.
Each party will call evidence in support of their case, and the court, whether in the form of a judge or jury, makes a finding. This may be compared with a coronial inquest, which is an inquisitorial process.
The nature of the forum will determine the rules that apply to the evidence and whether the witness will be entitled to legal representation.
Evidence may be given in the form of a statement or report, and as oral evidence. When giving oral evidence, the witness will be asked to swear an oath or affirmation to the truth of their evidence.
They may then be asked to confirm the evidence contained in a statement or report. Questions may be asked by the barrister representing the party calling the witness. This is called ‘examination in chief’. These questions are asked with a view to eliciting evidence from the witness in a way most favourable to that party’s case.
The witness is then cross-examined by the barrister appearing for the opposing side.
The point of the cross-examination of a witness is:
• To seek to demonstrate that the evidence given is inaccurate or incomplete
• To put to the witness the other party’s case
• To undermine the credibility of the witness or show that they are not impartial
• To attack the qualifications of the witness to give an opinion on the issues in the case.
The party calling the witness then has the opportunity to re-examine the witness with a view to clearing up ambiguities and uncertainties that may remain after the cross-examination.
At any stage in the proceedings, the witness can be questioned by the judge. Juries, where used, cannot directly question a witness.
Court procedure and etiquette
• Promptness: never be late for court.
• When an officer of the court announces that a judge will enter or leave the court, all present must stand. After entering, the judge will bow to the people in the court, who will bow in return.
• If entering a court while in session, open the door and step in quietly, bow to the judge and take a seat. Similarly, if leaving the court during a hearing, move to the door of the court without disrupting the proceedings. Bow to the judge and quietly depart.
• People present in court must not talk, or move about the courtroom when witnesses are being sworn in or when the judge is speaking.
• When called to give evidence, listen carefully to the instructions of the court officer. Once in the witness box, a witness must remain there until formally excused.
• Mobile phone must be turned off.
• In some jurisdictions coroners, magistrates and judges are addressed as ‘Your Honour’, or ‘Sir’ or ‘Madam’. In other jurisdictions coroners and magistrates are addressed as ‘Your Worship’. If unsure of how you should address the bench, ask the solicitor or barrister who had called you to give evidence.
• A barrister is addressed by name, for example ‘Mr Jones’, or ‘Sir’, or ‘Madam’.
• Always remember that patient confidentiality is paramount. You should not discuss your evidence or show anyone your clinical file, if you are approached to do so. Refer any enquiry to your patient’s legal representative immediately or to your lawyer if you are a party to the proceedings.
Tips for giving evidence in court
If you are called on to give evidence in court, the key persuasive factors for judges are clarity of explanation, impartiality, experience in the field and familiarity with the facts. These tips from Ed Muston, barrister, relating to giving expert evidence may also be helpful.
• Remember your role and closely guard your independence
• Listen to the question
• If you don’t understand a question, say so
• Always answer the question
• Do not be afraid to ask questions of other experts or engage in dialogue
• Be courteous, polite and professional ...
• ... but don’t allow this to conceal disagreement with another expert
• Remember your audience
• Don’t stray beyond your expertise.
Giving evidence as a treating practitioner
Treating practitioners who are appearing as witnesses should ensure that their notes are with them in the witness box. The barrister calling the witness will obtain permission from the judge for the witness to make reference to such notes.
Be familiar with the patient’s file and the facts of the case.
Qualifications to give an expert opinion
Before giving expert evidence, the witness should consider whether they are qualified to offer an expert medical opinion on the issues in that case. To be accepted by a court, expert evidence must satisfy two criteria:
• The expert witness must have ‘specialised knowledge based on the person’s training, study or experience’
• The opinion expressed in evidence by the witness ‘is wholly or substantially based on that knowledge’ (Dasreef Pty Limited v Hawchar  HCA 21)
Before agreeing to provide an expert opinion you should therefore be satisfied that you have:
• Relevant academic and professional qualifications
• Relevant clinical experience in the area and at the time the medical issue in dispute arose
• Specialised knowledge of the medical issue in dispute
• Been in active practice in the relevant area of expertise.
Retired practitioners or practitioners no longer practising in the area of expertise addressed in the expert report should give opinions only in relation to an incident that occurred when they were in active practice or give opinions only on their relevant area of expertise, when they were in active practice.
Arrangements to attend court
Optometrists asked to attend court to give evidence should write to the solicitors concerned indicating their professional commitments on the date on which the appearance is required and for several days thereafter, so that a mutually convenient time for the practitioner to give evidence can be agreed on and the optometrist can be ‘placed on call’.
In some circumstances, evidence may be given by telephone or audio-visual link. The possibility of this should be raised as early as possible with the solicitor calling the witness.
If you are subpoenaed to give evidence and you are unsure how to respond, Optometry Australia’s members can seek Avant’s advice on 1800 128 268.
Persuasive factors when experts give oral evidence
Source: Australian Judicial Perspectives on Expert Evidence: An empirical study 1999. Freckelton et al
Disclaimer: This article is not comprehensive and does not constitute legal advice. You should seek legal or other professional advice before relying on any content, and practise proper clinical decision making with regard to the individual circumstances. Avant is not responsible to you or anyone else for any loss suffered in connection with the use of this information. Information is only current at the date initially published.
Avant provides professional indemnity insurance for members of Optometry Australia