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Do you know what to do when issued with a subpoena? Here is a step by step guide

What is a subpoena?

A subpoena compels a witness to provide a court with information or documents on a specific date, time and location. Failure to do so can lead to a penalty being imposed by the court.

There are two types of subpoenas

  1. A subpoena duces tecum: In Latin, this means “you shall bring with you” and requires the witness to produce a document/s relevant to a proceeding. The subpoena will detail how to provide the documents or evidence to the court. Usually this refers to the production of the original clinical/patient records in your possession.
  2. A subpoena ad testificandum: In Latin, this mean “to testify” and demands you to appear in person and give oral testimony at a trial. The subpoena will display a date and time on which you must appear at the court.

How is a subpoena served?

A subpoena is issued by the court and is served by the sheriff of the court. The attorney who requested the subpoena to be issued may also, as a courtesy, deliver a copy of the subpoena to you or make contact with you regarding the subpoena before the sheriff of the court delivers a copy to you. The subpoena is only effective once the sheriff has served the subpoena on you, personally.

What documents must I produce?

With a subpoena duces tecum, you only have to provide the documents or items that have been asked for and listed in the subpoena. The subpoena will tell you to deliver these documents to the court. 

What are they issued for?

A subpoena can be issued in relation to:

  • Inquest proceedings (for example, where a practitioner treated a patient who subsequently died, and they are called upon to give factual evidence to assist the court in making a finding regarding the cause of death).
  • Criminal proceedings (for example, in a case of rape or assault where a practitioner may have been involved in treating the victim).
  • Civil proceedings (for example, where a practitioner may have treated a patient after a motor vehicle accident and the injury is the basis of a subsequent claim for damages).
  • Professional conduct hearings before your regulatory body, such as the HPCSA.

Can I ignore a subpoena?

When you receive a valid, issued and served subpoena, you are obliged to comply with its provisions, unless the relevant attorney or prosecutor that issued the subpoena has agreed and confirmed in writing that you do not have to comply with it anymore. If you fail to do so, you can run the risk of being held in contempt of court, with an accompanying fine or even a warrant being issued for your arrest.

Step by step guide  Check the heading of the document and ensure that it is a subpoena and not a summons or any other legal document. A subpoena will look similar to this:

  1. Take note of the date it was served on you and on whom it was served (for instance your receptionist or hospital’s administrative personnel).
  2. Confirm that the name of the person being subpoenaed defines you correctly.
  3. If the subpoena does not accurately describe you, if your address is incorrect or if the subpoena was not correctly served by a sheriff, you can refuse to accept it.
  4. If you refuse to accept service, you must inform the sheriff that the person described in the subpoena is not you or the address is not yours.
  5. The sheriff may reasonably insist that a copy of the subpoena is left with you.
  6. You must then immediately contact EthiQal, provide us with a copy of the subpoena served on you, the correct date upon which it was served and any other relevant information relating to the service.
  7. EthiQal will check if the subpoena is valid, has been correctly issued and served in good time, and if it is a subpoena duces tecum or ad testificandum. We will enter into communications with the lawyer who issued the subpoena, and, in some situations, this can lead to negotiations to ensure that you are inconvenienced as little as possible.
  8. If it is a subpoena duces tecum, EthiQal will need all the records in your possession, so we can assess them against the documents demanded in the subpoena before delivering them to the requesting attorney or prosecutor. If it is a subpoena ad testificandum, we will appoint attorneys to help you prepare your testimony and to appear with you at court on the relevant day, if necessary.

Is there a risk to me?

When you receive a subpoena, consider if you have any exposure to a claim or complaint in relation to any of the parties referred to in the subpoena. Is there a chance that providing information to the attorney or prosecutor creates a potential risk to be sued yourself? EthiQal will discuss with you the possibility of exposure and will advise accordingly. Although you might just be a witness, we will need to ensure that the situation is appropriately managed to avoid or minimise any risk to you.

Can I object to the issuance of the subpoena?

EthiQal may consider the potential objection to the issuance of the subpoena if it is for an improper purpose. This would include subpoenaing records that have no relevance to the proceedings, subpoenaing persons who would have no evidence to present, or subpoenaing records or testimony that is confidential or privileged.

Aren’t patient documents confidential?

The ethical rules and requirements in terms of the POPI Act relating to confidentiality must be maintained and therefore you may not provide information relating to the treatment and management of your patient to anyone or any party without your patient’s express consent, even in this instance of being subpoenaed by court (a subpoena is not a court order). Similarly, in court, you may not give evidence regarding the treatment and management details of your patient without your patient’s express consent – unless you are ordered to do so.

What happens if the patient withholds consent?

You must advise the presiding officer in court of your obligation of confidentiality and of the lack of patient consent, whereupon the presiding officer will decide whether or not you should proceed to give the evidence.

Is there a consultation process before trial?

If a patient subpoenas you to give evidence as a factual witness, you are allowed, but not obliged, to consult with him/her in preparation for the trial. You should be wary of being misled into thinking that you must consult with the party subpoenaing you before and/or during the trial. EthiQal will advise you accordingly.

Do I get recompensed if I spend time in court?

Unfortunately, recompense for practitioners doing civic duty, as provided for in the relevant legislation and the Rules of Court, is generally minimal. Reimbursements can be sought for reasonable travel expenses, accommodation and meal costs, as well as for lost income, however, it is capped at a nominal amount per day. Whatever the reason for a subpoena being issued, the onus on you remains the same: to provide the court with a factual account, free from bias or embellishment.

What is the difference between a subpoena and a summons?

A summons is a legal document that initiates a civil case or a criminal investigation against a particular defendant or accused, while a subpoena is issued to a witness.

At EthiQal, we are committed to protecting our doctors and keeping them in practice. Our in-house team of experienced medical and legal professionals will assess your situation and provide you with appropriate assistance and support. We also understand the anxiety that receiving a subpoena can cause and we can provide counselling by qualified experts.

Let us know how we can help you. For more information about this topic and our other medico-legal services, please contact EthiQal today. You can send an email to claims@ethiqal.co.za or call our claims and medico-legal support line on 021 007 4527.

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