Admissibility in evidence of covert recordings of expert examinations

geyre

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.

[Who or what is medico-legal minder?  Terms and conditions apply]

 

The value of contemporaneous documentation

geyre

Records and notes made at the time of clinical practice – notes of an examination, operation records etc or letters or emails sent immediately afterwards – will carry substantial weight in court or other tribunals or hearings if the events to which they relate come under scrutiny at a later date, for example in a claim for damages or for professional misconduct.

In Clinical Practice and the Law – a legal primer for clinicians Section 2.4 I wrote:

In understanding the lawyer’s mind it is important to keep in mind the distinction between an oral (spoken) account of something which has happened and a contemporaneous (or near contemporaneous) written record.  With the best of intention, memory is fickle, often selective, weighted by cognitive bias and often lacking in detail, but it is also subject to innocent re-interpretation in the light of subsequent knowledge or facts.  And of course it may be adapted, intentionally or unintentionally, in order to excuse past actions or inaction.  In contrast, a written record, although it may be falsified, if genuinely made contemporaneously to the events to which it relates, reduces the chances of all of these failings.

This means that a careful, full and explanatory record made at the time of the events to which it relates (or made very shortly afterwards) is likely to carry greater weight when seeking to ascertain what happened and why, than an oral account given subsequently when the events are being put under a critical microscope in court or some other hearing or process.

In a recent case Simetra Global Assets Ltd & Richcroft Investments Ltd v Ikon Finance Ltd [2019] EWCA Civ 1413, and in a non-clinical setting, the Court of Appeal made the same point, in criticising the trial judge for failing to explain why he did not accept the evidence provided by contemporaneous records:

A party’s internal documents, including email and instant messaging, tended to show a witness’s true thoughts and were generally regarded as more reliable than their oral evidence or demeanour in court.  Therefore, where contemporary documents which appeared on their face to provide cogent evidence contrary to the conclusion the judge proposed to reach, the judge should explain why they were not to be taken at face value or were outweighed by other compelling considerations.

It is difficult to over-emphasise the importance of ensuring that the clinician makes clear and comprehensible notes and records at the time of, or very shortly after, any involvement with a patient.  Not only will these be useful for the clinician if providing further care to the patient at a later date, or other clinicians taking over from the original record maker, but they should provide a complete explanation as to what took place and why, and, if that was competent and appropriate, a complete answer to later criticism, however that might arise.

More guidance as to what the records and notes should contain, and how to make them concisely and within the limited time available, is covered in Section 8 of the book referred to above.  An explanation of the many processes in which the clinician may be involved should there be criticism of past conduct is covered in Section 15.

[Who or what is medico-legal minder?  Terms and conditions apply]