The Doctors note aka “get out of jail free card”

Relationship breakdown

posted: 24th January 2017

Unfortunately it is becoming increasingly common that during proceedings one of the parties at some point will produce a doctor’s note purporting their inability to attend at court for a particular hearing.

In my experience this has usually occurred during Children Act proceedings when the party who is reluctant to agree to any contact for the non-resident parent conveniently produces a doctor’s note in an attempt to excuse their attendance at court.

The use of a doctor’s note as a “get out of jail free card” must be discouraged.

On a recent case, we represented a father who had issued an application for a Child Arrangements Order. There were three Court hearings in which the mother attended at only one and refused to negotiate on any issues while at court.

The night before the final hearing, the mother filed at court a note from her GP Surgery that detailed that she had been signed off work due to low mood and period pains. Nowhere in this note did it give any detail that the Mother due to her symptoms would be unable to engage in the ongoing court process or indeed attend court for the court Hearing.

The final hearing was listed in the Magistrates Court and on the morning at court we made an application requesting that the final hearing go ahead in the mother’s absence.

Submissions were made highlighting the lack of detail in the doctor’s note produced by the mother, reminding the Magistrates about the mothers reluctance to engage in the proceedings and advising that delay in finalising the case was ultimately not in the best interests of the children.

Reference was made in the submissions to the case of Levy v Ellis-Carr (2012) EWHC 63 which itself was not a case dealing with Children Act Matters but an appeal concerning a financial relief case, however the importance of the principals regarding the submission of letters from GP’s/Dr’s as set out by Norris J cannot be overlooked.

In his Judgement Norris J set out the various elements that should be covered in any note from a medical expert that is placed before the court in an attempt by any party to the proceedings to not attend court when they are required to do so.

Norris J suggested the following:

a. The doctor should be identified in the letter, it is not sufficient for a letter to come on a letterhead from a multiple GP practice without the individual doctor being identified and the letter signed with a legible signature.

b. The information supplied by the doctor in their letter must detail that the particular doctor has been treating the particular person and the letter has not just been produced as a result of a telephone call to the surgery,

c. The letter should include a list of all the recent consultations the person has had with the doctor who has written the letter.

d. The doctor writing the letter must provide a clear and precise statement of the exact condition the person is suffering from and how the symptoms they are suffering from prevent them from attending at court.

e. The doctor should detail in the letter how long it will take before the person recovers from their symptoms and is able to attend court.
Thankfully the Magistrates agreed with the submissions made on behalf of our client and the Final Hearing took place in the absence of the mother with a Child Arrangements Order being made in our clients favour.
This decision was significant and should act as a deterrent for those who wish to frustrate the court process by producing unsatisfactory and insufficient medial evidence.

There will however always been occasion when a party to the proceedings is genuinely ill and unable to attend court. If that is the case then the guidelines as given by Norris J in Levy v Carr should be followed if it is that particular person’s intention to file a doctor’s note at court excusing their attendance.

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By: John Owens - Senior Associate