October 21, 2019

Covert recordings of medical examinations: amiss but admissible

Covert recordings of claimants have long been a powerful weapon for many a defendant. However, a recent English judgment may be ushering in a new era: claimants covertly recording medical appointments with defence experts.

In Samantha Mustard v Flower and Direct Line [2019] EWHC 2623 (QB) the claimant’s medical experts supported her position that she had a serious brain injury. In contrast the defendant’s experts concluded that the claimant suffered no, or only a minor, brain injury.

Reports were obtained from experts in seven different medical fields. Ms Mustard's solicitor advised her to record the medical examinations with the defence experts. She did so, four with permission but two covertly. By contrast she did not record the examinations by her own experts. The defendant’s neuropsychologist specifically asked her not to record the neuropsychological testing. However, she inadvertently did so and her own expert neuropsychologist was critical of the how that testing was undertaken. Ms Mustard's position was that the recordings were intended to be an aide memoire and to evidence any misunderstanding that might arise from what she said in the examinations.

The defendant invited the court to exclude the recordings on the basis that they breached data protection provisions, were unlawful (or at least improper) and created an uneven playing field between the experts.

Master Davison found that while the covert recordings might be reprehensible, they were not unlawful. Moreover, they did not breach data protection provisions. Those regulations did not apply to a doctor’s examination because that constituted a “purely personal activity”: the relevant data related only to the claimant. Any lack of level playing field was merely theoretical. Moreover, Ms Mustard's reasons for recording only the defence experts, if accepted, were understandable.

Strikingly, Master Davison found that covert recordings are a “part of professional life” and he urged agreement of a protocol between the Association of Personal Injury Lawyers and the Forum of Insurance Lawyers.  However, he went further: he stated his view was that it would be in the interests of all sides for examinations to be recorded, due to the significant disputes that arise as to what occurred. 

Some interesting questions arise. Will it become the norm for claimants to record consultations with medical experts? Indeed if it's lawful, why would they not – and will claimant solicitors be negligent if they don't advise them to do it?  And while the level playing field argument failed in this case, that may have further to run. One answer may be for parties to agree that all experts will offer to record a consultation, to be made available to both parties.

If covert recording is allowed in this scenario, will patients begin to record their everyday consultations with doctors? Certainly this decision implies that such recordings would constitute admissible evidence. No doubt that would be of interest to regulatory tribunals too, as we have seen previously. Doctors may want to supplement clinical records with their own recordings – albeit that would certainly require consent and may face formidable data protection issues.

Every doctor should aim to conduct a professional examination with the patient and prepare an accurate clinical record or report. Perhaps the expectation that they are being recorded may concentrate everyone's mind.

And if covert recordings of meetings with doctors are permissible – why not also with their solicitors?