Response

In my recent article “On the witness stand. Learning the courtroom tango,”1 I presented general, nontechnical information to help family physicians prepare for and deliver testimony in courts and judicial hearings. Dr Winkelaar’s letter highlights some important areas to expand upon in exploring this role for physicians. Physicians need to understand that law governs their participation in courts—some of this is federal law (criminal cases) and many times it will be statute derived from provincial legislation (eg, child protection, dependent adults). Law takes precedence over professional guidelines. Inthe same issue of Canadian Family Physician, it is noted that “[9%] of the 11 041 family physician respondents to the 2004 National Physician Survey (NPS) indicated that legal or medicolegal consultations were part of their practice.”2 Many physicians are, therefore, involved in presenting information to courts and participating in medical evaluations for legal purposes. While not suggesting that a law degree is necessary for such legal participation, Dr Winkelaar points out that it is advisable that physicians augment their medical knowledge with relevant readings in Canadian law specific to the task in which they are engaged. He provides an excellent list of resources in that regard.

As to the issue of whether physicians are called as (ordinary) fact witnesses or expert witnesses, this remains an empirical question and important area of discussion. In the defining case of R. vs Mohan,3 the Supreme Court of Canada unanimously delineated when an expert is needed and who qualifies as such. This directive states that expert testimony must be relevant to the issue before the court; that it be necessary for the trier of fact; that it should not trigger exlusionary rules; and that it must be delivered by a properly qualified expert.

I pointed out in my article that all family physicians would be recognized as being qualified as experts in general medicine. In hundreds of trials, I have never seen a treating family physician offered as a fact witness because of the strict limitations on questioning non-experts. Fact or ordinary witnesses cannot offer opinions. Being an expert witness subsumes the role of fact witness, and experts can both speak to their direct observations and offer opinions and respond to hypothetical situations.

Some physicians have told me of attempts to have them qualified only as fact witnesses rather than experts; they perceived this as a means of avoiding paying them as expert witnesses (ordinary witnesses receive only a small stipend). I have encouraged physicians who had such concerns to notify their provincial and national professional bodies for a review of such practices.

Although treating physicians are allied to their patients through the helping role, this does not preclude their concurrent objectivity and credibility required as an expert. I remain of the firm opinion that, except in rare circumstances, family physicians should take the role of expert in court, not only based on status of their education and experience but also drawing on the rules defined in Canadian law and in acknowledgment of the full purpose of their participation in legal cases. Reporting in court what a patient’s blood pressure was at a given examination can be included in the fact witness’s role (this could as easily be derived from the written record) but offering a medical prognosis is, by definition, an opinion and the sole domain of an expert. The weight of the expert’s testimony is also very likely to be greater than that of a fact witness.

Dr Winkelaar correctly reminds readers of the need for express informed consent when consulting with any third party outside the patient’s circle of care before a trial—even the patient’s own lawyer. No protection of confidentiality can be given when a physician takes an oath in court to provide testimony. However, patient information should not be discussed outside that forum and only details necessary to the facts should be disclosed in court. If physicians believe that questions asked of them in court stray from the issues, seeking clarification from the judge is always a prudent action. Not all legal proceedings require the production of an expert report before testimony, but some do insist on a written substance of opinion (short summary of evidence to be given at trial) within a strictly defined time before the trial commences. These time limits vary between jurisdictions. It is vital for physicians to discuss all the legal requirements and role expectations before involvement in legal proceedings.

As the confluence of medicine and law grows, a continuing dialogue about expectations and functions of the family physician in courts is warranted. I thank Dr Winkelaar for his contribution to this discussion.

• Copyright© the College of Family Physicians of Canada