An article for physicians by physicians
Originally published in March 1995, revised April 2008, December 2009 P0904-2-E
A subpoena or summons to witness requires the person named to attend the court, tribunal, commission, inquiry, inquest or military board proceeding or hearing named in the subpoena.
Many physicians will have the experience of being served with a subpoena (sometimes referred to as a "summons") to appear as a witness before a court. A variety of other tribunal (including medical regulatory authorities or Colleges), commissions, inquiries, inquests and military boards may also have the authority to issue subpoenas or summons to require a witness to appear before it to give evidence.
The court document that is served on the physician raises questions, but does not usually include the answers and rarely contains enough information to be helpful. The following is a sample of some of the questions the CMPA receives most often from members about subpoenas.
What is a subpoena?
A subpoena is a document that most often orders a witness to attend at proceedings. The subpoena will set out the time, date and place of the required attendance. Usually, the subpoena also directs the witness to bring "any documents or materials which are relevant to the action."
What should you do if:
- there has been no advance warning and you are unsure about what evidence/documents is/are required?
- you know the name of the accused but not the patient? (This may arise in criminal cases where the subpoena does not typically identify the name of the patient.)
- you have a fully-booked OR/office or a vacation planned for the date your attendance is required?
- the specified date is tomorrow and there is no time to alert your patients or obtain copies of the records?
Contacting the legal counsel who served the subpoena is typically a useful first step in resolving your concerns. For scheduling matters, there is often flexibility regarding the date and time indicated on the subpoena. Legal counsel, courts or tribunals will generally be as reasonable as possible in trying to accommodate schedules and providing advance notice of when actual attendance in court or at the hearing is necessary. The lawyer who served the subpoena can often arrange for a mutually convenient time for you to attend. During this contact, no medical information should be revealed without the patient's authorization or a legal order explicitly requiring you to do so.
Can you ignore the subpoena?
Serious sanctions can be imposed if you ignore a subpoena or choose not to attend the proceeding. Court schedules and witness requirements can change quickly. Sometimes subpoenas are served only as a precautionary measure and you may not be needed as a witness after all. Sometimes the case settles or for some other reason does not proceed and the parties have forgotten to advise you. However, without proper confirmation from the lawyer, preferably in writing, you should never assume that your attendance is not required.
Does a subpoena influence your responsibility to maintain patient confidentiality?
A subpoena is not authorization to breach patient confidentiality. It is a command to attend. A subpoena alone does not grant the physician authority to speak to the lawyer who issued the subpoena or to agents such as police officers about the contents of patient records or any aspect of a patient's care before appearing in court. Remember that you may only provide records or discuss patient care with a third party if you have your patient's authorization to do so or if you are required by law (such as through a court order explicitly requiring you to do so).
Can you provide the patient's records or a report instead of attending?
In some cases, the lawyer or court officer may only be seeking a copy of the patient's records. You may be offered the opportunity to provide records or a report instead of attending. This should generally be done only with the patient's consent to release the records to the lawyer or court officer. Whenever possible, the patient's authorization should be in writing and kept on file in case it has to be produced in future.
Otherwise, a subpoena is generally not sufficient authority for you to release records without the patient's consent before appearing in court. If the subpoena requires, you must bring the original paper records or a printout of any electronic records with you to court and be prepared to release them (or a copy) when ordered by the judge or upon authorization from your patient. When the records were created in electronic form, you may also be required to bring additional information stored in the electronic record system, including "metadata" such as when an entry was created and whether there have since been any changes to it. The lawyer who issued the subpoena may be able to help identify the necessary information or data that you should bring with you from an electronic record.
It is possible that you may also receive a subpoena or another official directive to attend issued by a tribunal or judicial body other than a court (e.g., human rights commission, coroner, military tribunal, commission of inquiry, etc.) In these circumstances in particular, it is important to carefully read what is being asked of you in the document immediately upon receipt. The rules about what you may be required to do through a subpoena or summons vary. For example, in limited circumstances a summons issued by some tribunals may require you to produce documents prior to appearing as a witness. In these circumstances, you are encouraged to contact the CMPA upon receipt of the subpoena for advice on your obligations.
You may receive a subpoena issued by a court or tribunal in another province, territory or country. In most provinces and territories, a subpoena issued in another province or territory in Canada will be considered enforceable. However, for a subpoena issued outside of Canada to be enforceable, it generally must be endorsed or issued by the applicable provincial/territorial court in the location where it is being served. CMPA members served with a subpoena or summons issued by a court in another jurisdiction are strongly encouraged to contact the CMPA before taking any further action.
The lawyer says you have to attend, what now?
As mentioned above, contact should be made with the person who sent the subpoena for the purpose of scheduling your appearance. Once you attend the proceeding and are sworn in you will be directed by the judge to answer questions asked of you and at this time are protected from an allegation of breach of confidentiality.
Will I be paid?
If you must appear as a witness, you should generally be provided with attendance money. The rules of court in many provinces/territories set out tariffs for calculating attendance money for witnesses. Although witnesses subpoenaed to appear at a criminal trial are entitled to a minimal witness fee and travel costs under the Criminal Code of Canada, this rarely occurs in practice. In any event, these funds are always insufficient. While attendance money is calculated in accordance with the rules, it should be noted that income lost as a result of time taken off to testify is not recoverable.
Again, if there is any doubt as to your obligations or the appropriate action to take, it is recommended that you call the CMPA promptly for assistance.
For advice and assistance with subpoenas and summons contact the CMPA.