Category: medico-legal

Admissibility in evidence of covert recordings of expert examinations

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It has been a matter of some concern among medical experts that examinations by them of a claimant might be secretly recorded, and if they were, whether the recording would be admissible in evidence to challenge or contradict the expert’s evidence about the examination.  In the recent case of Mustard v Flower [2019] EWHC 2623 (QB) a Master (procedural judge) in the High Court had to rule on the admissibility of the evidence of just such covert recordings made by a claimant.

The claimant’s action raised the question of whether or not she had suffered organic brain damage in a relatively low speed road accident.  The claimant made covert recordings of her examination by several of the defendant’s experts.  In relation to the neuropsychologist, the recording of the formal testing was asserted to have been made accidentally but in relation to the other experts it was accepted that the fact of the recording was intentionally not revealed.

Objections:

The experts complained in very strong terms about the covert nature of the recordings (one said that he felt that the claimant’s actions were wanting in honesty, transparency and common courtesy, that his permission should have been sought and that he felt sullied by what took place; another that she felt professionally violated, distressed, angry and disillusioned). Further, the defendant asserted that the recording of neuropsychological testing (a) raised issues regarding the proprietary rights in the tests, which were not for release into the public domain, (b) rendered the claimant herself essentially “un-assessable” on any future occasion, (c) was capable of changing and distorting the nature and dynamics of the examination and therefore the results undesirably, (d) conferred on the claimant’s solicitors “insider knowledge” of the content and methodology of the tests, and (e) by reason of the foregoing, raised professional conduct issues. Further the defendant’s neuropsychologist complained that because her consultation with the claimant had been recorded and that of the claimant’s neuropsychologist had not, she was unable to scrutinise any shortcomings in his approach and operating methods in the same way that the claimant could, were she to wish to do so.

The defendant further asserted that (1) the recordings were unlawful under the Data Protection Act 2018 and the General Data Protection Regulation 2016/679 and (2) they should be excluded because (a) of the unlawful (or, at the very least, improper) manner in which they had been obtained, (b) they had impaired or undermined the validity of the neuropsychologist’s testing, and, (c) they gave rise to an uneven playing field or an inequality of arms as between claimant and defendant in that only the defendant’s experts’ examinations had been recorded in this way.

Court’s ruling:

The Master rejected the proposition that the recordings were a breach of the Data Protection Act or the GPDR on the basis that Article 2(c) of the GPDR provides that the Regulation does not apply to the processing of personal data “by a natural

person in the course of a purely personal … activity”. Recording a consultation with or examination by a doctor fell into this category and supplying the recordings to her advisers did not take it out of the category. Further, the relevant data related to the patient (the claimant) not the doctor.

Therefore the Master ruled that the covert recordings were not unlawful, even if reprehensible. Given that the claimant acted on the advice of her solicitor and her motives were, in the context of adversarial litigation, understandable, whilst her actions lacked courtesy and transparency, covert recording had become a fact of professional life and was not so reprehensible as to outweigh other considerations.

Because the defendant neuropsychologist’s conduct of her examination of the claimant and her administration of the neuro-psychological tests was put into question, the recording of her examination was highly relevant and potentially probative. The Master regarded the potential of the recording to impair or degrade the results of the neuro-psychological testing by the defendant’s expert as only a marginal factor in the decision on admissibility, particularly given the argument that the testing was impaired by reason of the expert’s own technique and methodology.

The covert recordings of 2 other of the defendant’s medical experts was also found to be relevant and probative, specifically in relation to the claimant’s account given to them of her pre-accident history and the progression of her symptoms and in relation to whether the Waddell sign from the axial loading test was correctly reported as positive.

The future:

The Master did observe that some kind of protocol was needed governing the recording of medico-legal examinations and should be agreed between the Association of Personal Injury Lawyers and the Forum of Insurance Lawyers. It was also suggested that it was in the interests of all sides that examinations were recorded because from time to time significant disputes do arise as to what occurred. In that situation, it is important to have a complete and objective record of the examination, which is subject to appropriate safeguards and limitations on its use. It is desirable that the parameters of such recording should be on an “industry-wide” agreed model catering for the many issues capable of arising in such cases.

Significance:

The Master’s ruling appears pragmatic and, given the significance of the evidence contained in the recording to issues in the case, appropriate.  It is however a decision made at the lowest end of the judicial hierarchy and does not bind any other judge.  The proposal that all examinations in the medico-legal context be recorded, and effectively held in case an issue arises, would seem likely to be the direction in which we are heading, particularly given the ease and economy with which such recordings can be made, both overtly and  covertly.

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Consenting for pain

geyre

In the recent case of Ollosson v Lee [2019] EWHC 784 a patient was consented for a vasectomy.  He was told that there was a small risk, greater than that of early or late failure of the vasectomy, of chronic testicular pain as a potential complication, that the pain might affect the patient’s lifestyle, could be long-term and in the range mild to severe, and that there was no consensus about specific treatment for it.  It was indicated that the pain would in general be treated with over-the-counter medicine.  No mention was made of the possible need for treatment using morphine or referral to a pain clinic or the need for reversal of the vasectomy.

The patient developed chronic scrotal pain following the procedure.  He brought a claim against the doctor alleging that there had been a failure to advise of the risks associated with the procedure.  The evidence was that the risk of chronic pain was about 5% and that 0.9% might suffer severe pain affecting their quality of life 7 months’ post-operation.  The percentage suffering pain at the level of this patient was smaller.

The claim failed.  The judge held that it was not necessary to give the patient percentage risks.  It was adequate to describe the risk as ‘small’, “an everyday word which encompassed and satisfactorily conveyed the risk”.

The judge further held that a patient told of a ‘small’ risk could ask for clarification but in the absence of that it was only necessary to provide the patient with adequate information without their having to ask a question.  In this case that was done.

Learning points:

  1. This case illustrates possible limits to the information which must be given to properly inform a patient before an operation, although each case will be ‘fact sensitive’. While ‘small’ is a very imprecise number, it may be adequate to describe the risk of an operative risk. Here, on the evidence, that risk appeared to be less than 0.9%.  A possibility of ‘severe’ pain which might affect the patient’s lifestyle may be a sufficient description without indicating the nature of possible necessary treatment.
  2. Clinician’s regarding this case as support for being less than precise in describing risk or possible treatments for unfortunate outcomes might like to keep in mind that in a desire to properly inform a patient and to avoid possible litigation (or even the threat of it) it is probably wiser to be as precise as possible in describing risk, where the data is available, and the kind of treatment such an outcome might demand, where that can be sensibly summarised.
  3. It is not enough simply to give this information verbally to a patient. There must be some record (written notes or computer entries) made by the clinician to support what it is the clinician says was said, which may not be the same as what the patient recalls being said. (See for example the case of Hassell v Hillingdon NHS Foundation Trust considered in detail in Section 2.6 of Clinical Practice and the Law – a legal primer for clinicians)
  4. Interestingly both sides in the trial agreed that the information booklet provided to patients in advance of the procedure was inadequate, and on behalf of the clinician it was therefore necessary to rely on what was said by the clinician on the day of the procedure. There is no good reason why the information booklet should not be fully informative, and clinicians should review such booklets to ensure that they are adequate. Further relying on information given on the day of the procedure, when the patient arrives expecting the operation to be carried out and having made work and social arrangements to be there and for any necessary aftercare, is unwise and potentially negligent (see Thefaut v Johnson [2017] EWHC 497).

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