Articles and Case Studies

Witnessing Documents for Patients

22 Oct 2015

Dr Sara Bird

by Dr Sara Bird

Woman looking at documents

Dr Sara Bird, Manager of MDA National’s Medico-legal and Advisory Services, answers questions about witnessing documents for patients.
Q. Can you provide some guidance on the legal obligations of medical practitioners when asked to witness documents for patients?

 

A. This largely depends on the nature of the document and the requirements of the witness. For example, a witness may be required to:

  • attest to the identity of a person, e.g. a medical practitioner may be one of the professions specified for witnessing a particular document such as a passport application
  • assess a person’s capacity to understand the nature and effect of a document, which is clearly a role requiring specific clinical knowledge.

 

It helps to bear the following key messages in mind when asked to witness a signature on a document:

  • Understand whether your role is to:
    • attest to the person’s identity
    • assess the veracity of the document
    • assess the person’s capacity to understand the document.
  • Take care of your signature. It may help to ask yourself why this person/patient is asking you, rather than someone else, to witness the document.

Case study

This case study, based on a real case, illustrates the importance of being wary of requests to witness a patient’s signature, particularly when involving legal documents.

The JMO on evening shift was called to the oncology ward. The nurse asked if he could “witness” the signature of one of the patients on a form brought in by his son. The form, which granted the son an enduring power of attorney, required a second signatory stating that the patient was “of sound mind” at the time it was signed. After a 15-minute discussion with the patient and the son, the JMO signed the form. No other family or staff members were present at the time.

A few weeks later, the JMO received a call from the hospital’s solicitors wanting to know if he had completed a form attesting to the fact that the patient was mentally competent to understand the nature and effect of granting an enduring power of attorney to his son. The JMO replied that he felt his role was simply to witness the patient’s signature and thought the patient had understood what was happening, despite his illness.

The patient’s wife had complained as she felt her husband had signed the form under duress. The mother and son had not spoken to one another for some time due to a family dispute. The treating oncology team were concerned that the patient’s illness was such that he may have lacked the mental capacity to understand the nature and effect of completing the form.

The solicitors wanted a statement from the JMO about his involvement in the matter. The JMO sought advice from MDA National and was provided with assistance in finalising his statement.

In this case, it would have been prudent for the JMO to refuse the son’s request to complete the form and ask him to liaise with the patient’s treating team the following day.

View the Guidelines for Authorised Witnesses.


Dr Sara Bird 
Manager, Medico-Legal and Advisory Services 
MDA National

twitterFollow Dr Sara Bird on Twitter @SaraBird50

 

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