Facing a tricky ‘sickie’

Being asked by a patient to issue an ‘unfit for court’ certificate is a complex and emotive area that can lead to difficulties if doctors are unaware of the possible pitfalls, warns Gabrielle Pendlebury.

‘Unfit for court’ certificates are normally submitted by defendants in criminal proceedings as justification for not answering bail. 

If a medical certificate is accepted by the court, then cases, including contested hearings and trials, get adjourned rather than the court issuing a warrant for the defendant’s arrest without bail. 

Certificates will also provide the defendant with enough evidence to defend a charge of failure to surrender to bail.

They may also be submitted by witnesses who are due to give evidence and by jurors. But doctors can find themselves colluding with reluctant witnesses and jurors if they are not careful. 

To ensure you follow best practice, heed the relevant guidance. 

Carefully scrutinised

The cost of adjourning trials to accommodate defendants and jurors can be very high, so certificates are carefully scrutinised. 

Doctors should be aware that, when issuing a certificate in criminal proceedings, they make themselves liable to being summonsed to court to give evidence about the content of the certificate and may be asked to justify their statements. 

So when writing a certificate, consider the Crown Prosecution Service guidance, which states that a certificate should contain enough detail for the court to decide, including:

 The date the doctor examined the defendant;

 The exact nature of the defendant’s ailment;

 If it is not self-evident, why the ailment prevents the defendant from attending;

 An indication as to when the defendant is likely to be able to attend court or the expiry date of the certificate. 

Circumstances where a court may find a medical certificate to be unsatisfactory include: 

1. Where the certificate indicates that the defendant is unfit to work – rather than to attend court;

2. Where the nature of the defendant’s ailment – for example, a broken arm – does not appear to be capable of preventing his attendance at court;

3. Where the defendant is certified as suffering from stress/anxiety/depression and there is no indication of the defendant recovering within a realistic time-scale.

Stressed patient

In the case of R v Ealing Magistrates Court Ex p Burgess (2001), a man was due to be tried for harassment. He obtained a certificate from his doctor stating he was unfit to attend court, due to stress. 

This resulted in the hearing being adjourned at significant cost and inconvenience to those involved and subsequent hearings were adjourned as the doctor issued repeat certificates.

Eventually, the court lost patience and, on learning the patient had been attending another court as a claimant, it decided to exercise its discretion to disregard a certificate and heard the case in his absence.

The patient challenged this in the High Court, where the judges agreed with the magistrates. They said: ‘The court has a discretion which has to be exercised with proper regard to the principle that the defendant is entitled to a fair trial. That includes a fair opportunity to be present at his trial.

Enough is enough

‘However, the words are “fair opportunity”, not “unlimited opportunity”, otherwise it would never be possible to proceed in a defendant’s absence and a defendant would be able to postpone trials indefinitely without the risk that the court would eventually be able to say “enough is enough; we will proceed in his absence”.’

When writing a certificate, make clear you are giving an opinion and this is to help the court decide whether to require the patient to attend. 

It might also be sensible to clearly state if the patient is truly incapable of attending court due to illness, either physical or psychiatric, or whether it would be inadvisable due to the risk of discomfort or exacerbation of a condition.

Careful consideration of requests for certificates, and careful wording of the certificate, should limit the risk of having to appear in court to justify the contents and limit the risk of criticism for being too ready to adhere to the patient’s request.

Gabrielle Pendlebury (right) is a medico-legal consultant at Medical Protection