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Covert Recordings of Medico-Legal Examinations. Should they be admissible?

In the recent decision of Mustard v Flower & Others [2019] EWHC 2623 (QB), the Court decided that covert recordings made by the claimant at some of the medico-legal examinations conducted by the defendant’s medical experts, were admissible in evidence. This is an important decision. A potential consequence is that it may lead to covert recordings at such examinations becoming routine. Whether this is appropriate is certainly debatable. Many people are now calling for the development of a Protocol.

The background to the claim is that in January 2014 the claimant, Mrs Mustard, was struck from behind by the defendant, Mrs Flower, in an RTA. The claimant’s vehicle was stationary. There was no dispute on liability.

As a result of the accident, the claimant maintained that she had developed a brain haemorrhage and other brain injuries which had left her with cognitive and other deficits. However there were significant differences between the claimant’s experts’ opinions and those of the defendant in terms of the claimant’s presentation and interpretation of her medical records. The defendant applied to exclude the recordings.

The defendant maintained that the recordings were unlawful under the Data Protection Act 2018 (“the Act”) and/or the General Data Protection Regulation 2016/679 (“the GDPR”) and/or the manner in which they had been obtained was improper and they should therefore be excluded. The defendants own experts submitted that recordings (seemingly even overt recordings) were capable of changing and distorting the nature and dynamics of a medico-legal examination and therefore the results and recording could render patients un-assessable in the future.

The Judge, Master Davison, disagreed noting that pursuant to Article 2 (c) of the GDPR, the GDPR do not apply to the processing of personal data in the course of a purely personal activity and these circumstances met that criteria, even when subsequently forwarded to the claimant’s solicitor. The judge also found that the relevant data related to the claimant and the Act/GDPR contained exceptions for personal data processed for exercising or defending legal rights.

The Judge did not consider that admitting the recordings was unfair. He was of the view that the argument submitted on behalf of the defendant, that there was a need for a level playing field and only the defendant’s experts had been recorded, was theoretical. The defendant had been unable to point to any aspect of the examinations by the claimant’s experts that had raised a query as to what a recording would assist to resolve.

The Judge weighed up the competing factors in light of the overriding objective and concluded that the balance favoured admitting the evidence. Whilst not explicitly stated in the Judgement, the justification for the recordings presented by the claimant’s solicitor may have been an important factor. The claimant’s solicitor, who had in fact advised the claimant to make the recordings, maintained that claimants with subtle brain injuries were susceptible to problems of memory and fatigue, thereby raising the potential for arguments of dishonesty.

The issue of covert recordings and whether they should be admissible, is not entirely new. There have been previous decisions which generally found in favour of such recordings being admissible. In this case the Court noted that an article had been written in the Medico-Legal Journal in 2018 criticising the stated view of the General Medical Council (GMC) and medical defence organisations in the UK who had come to the conclusion that patients could legally make covert recordings of their consultations with a doctor.

Of note to defendants and Insurers, the Court also stated that if the arguments presented in this case by the defence had been successful, then the “surprising and undesirable consequence” would be that covert video recordings of claimants by insurers would be equally unlawful. That would certainly be considered an unwanted consequence.

In terms of where matters go from here, there have been calls for there to be a Protocol that addresses this issue. In this case, Master Davison was certainly supportive. He felt that it was in the interests of all sides that examinations were recorded. This was because significant disputes do occasionally arise as to what occurred, in which case it would be important to have a complete and objective record of the examination, which is subject to appropriate safeguards and limitations on its use, whilst also paying careful attention to the costs that might potentially be generated. In the writer’s view, the call for an appropriate protocol is eminently sensible and would assist in defusing a significant area of potential conflict.

 

Any queries relating to the article above please feel free to contact a member of the Defending Personal Injury Claims’ team.


The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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