What is a ‘legal document’?

Date: February 23, 2017Author: M. Eburn 1 Comment

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
[2011] 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