My correspondent, a first year nursing student asks if I
… could please explain the difference between a legal document and evidence taken at the time. For example, when you have an operation you sign a document first and it is countersigned by a witness. I would assume this is an example of a legal document.
But as a nurse, I will be required to fill out a lot of information, for example, generic hospital forms etc which are either not signed or are only signed by a single person.
Are these considered to be a legal document or are they considered as written evidence taken at the time and would be produced just as that in a court.
The truth is I can’t explain the difference as I don’t know what people mean when they say ‘a legal document’ – usually when I’m being contrary I say something like ‘you mean that, at law, it is a document’.
The Oxford dictionary (online) defines document as ‘A piece of written, printed, or electronic matter that provides information or evidence or that serves as an official record’. I think that goes too far, a notation in your private notebook is also a document even if it isn’t an official record.
So what then is a legal document? I can think of several possible meanings.
First a document that has legal repercussions, usually penalties, if you knowingly lie on it. Your passport application (Australian Passports Act 2005 (Cth) s 29) or a statutory declaration (Statutory Declarations Act 1959 (Cth) s 11) would be examples.
Second, a document where the form of the document is set out in legislation – so you have to use the ‘prescribed form’. For example if you want to extend the time to hold the annual general meeting of a company you need to complete the ‘prescribed form’ (Corporations Regulations 2001 (Cth) Schedule 2). Just writing a note won’t do.
Third would be a document that is intended to effect legal relations and to be relied upon. For example a contract or a medical consent form where you know the person relying on the document (the surgeon, hospital etc) are going to act on the basis that the consent evidenced by the form is effective, but not that the form is just evidence of consent, it is not itself ‘consent’.
Finally a business record that can be used in evidence (see for example, Evidence Act 1995 (Cth) s 48(1)(e)). This provision is the ‘business records rule’. The logic is that businesses (including hospitals; Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542 and ambulance services; Lithgow City Council v Jackson  HCA 36) record things on documents because they are true. So a hospital record can be presumed to accurately record the observations noted, treatment given etc because the record would be pointless if it wasn’t assumed to be accurate – whether that accuracy is for patient care, making sure the bills are correctly issued, keeping track of the scheduled drugs etc. Where a document is produced in the normal case of business it can be tendered in evidence to prove that what is recorded actually happened. But it is just evidence, if there is other evidence that the entry on the document was wrong, things didn’t happen that way, the court is not required to accept the version recorded in the document.
To return to the question, a consent form signed by a patient is evidence that the patient did in fact consent to the treatment proposed and the things that the document says were done, were in fact done. So the document could be tendered to prove that the person did in fact consent if later they say that they did not or that the risks were not explained. It would put a burden on them to explain why they signed it, but there could be lots of reasons – despite what it says it wasn’t explained to me; I wasn’t given the chance to read it; I couldn’t read it; I was in no fit state to understand it etc. The point of the countersignature is again simply evidence so that if the person says ‘I didn’t sign it’ you can find the witness to say ‘yes they did, I saw them do it’. The process (eg one signature or two) doesn’t change the ‘legal’ nature of the document; which is the hospital, surgeon etc are going to rely on it as giving them authority to operate so it is intended to impact upon the legal nature of the relationship between the parties and it is evidence that what it records actually happened.
‘Generic hospital forms etc which are either not signed or are only signed by a single person’ are also legal documents in the way described above, that is if they are produced in the normal course of the hospital’s operations so the hospital can record what is happening, then they can be admitted as evidence that what is recorded is true. They are in that sense a ‘legal document’. And there would also be legal repercussions for knowingly entering the wrong data. Those repercussions could range from action by the employer to professional discipline in the case of registered health care professionals.
I think what is meant by ‘written evidence taken at the time’ would be the notes a person makes in their personal notebook, not a hospital or employers or anyone else’s form. A ‘contemporaneous note’ (ie one written at the time something happened) may be used by a witness to refresh their memory if they are called upon to give evidence about an event that they no longer recall. For more details see The Value of File Notes (June 10, 2016).
For other discussions on the use of notes see
Refusing Treatment Documentation (June 9, 2016); and
Completing Paramedic Case Records (September 3, 2015).