Keoghs Insight

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Matthew  Ruck

Matthew Ruck

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Recording Medical Examinations

Blogs28/05/2020

We recently published an impact assessment following the decision by MedCo to temporarily lift the ban on remote video examinations. The recording of such video examinations is optional but we suggested that compensators should put the claimant on notice that they expect the examination to be recorded and they may seek sight of that recording. Here we look at the reasons for this and the admissibility of such recordings.

Practicalities and precedents

A recording provides the best evidence of what was said and done at the examination. It is a quick and easy way of investigating any errors or inconsistencies and allows a party to challenge reports which are adverse or show a lack of competence. It may also encourage experts to carry out their examinations properly in compliance with the rules.

The recording of a medical examination is admissible where it can be established that the recording is relevant to the issues in the case and is of probative value. It is therefore important to be able to say why an examination should be recorded in any given case. It might be relevant where:

  • There are inconsistencies between the claimant’s evidence and the medical report, such as in pre-accident medical history or the nature, extent and progression of symptoms, especially where there is a dispute between the claimant and the expert as to what was said at the examination
  • There are inconsistencies between the medical report and other documentary evidence; such as medical records or accident histories
  • There is doubt about the identity of the person actually examined
  • There is doubt as to how the examination was conducted, the methodology used or the administration and reporting of tests
  • There is alleged malpractice

This has been considered in two recent cases.

In Mustard v Flower [2019] EWHC 2623 (QB), a case concerning the covert recording of examinations, Master Davidson commented that:

“It is [in] the interests of all sides that examinations are recorded because from time to time significant disputes 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.”

In MacDonald v Burton [2020] EWHC 906 (QB) Martin Spencer J considered case management directions on the issue of whether the neuropsychological testing of a claimant, whose brain was seriously injured in a car crash, should be recorded. The claimant had been advised to record his consultations with the defendant’s medical experts as an aide memoire and to protect him against errors. Referencing the Mustard case Martin Spencer J said:

“The advantage of that case though … is that it discloses the way in which claimants may be at the mercy of incompetent experts (or even worse than that), who do not follow the appropriate protocols or guidance when examining claimants and therefore come up with invalid results.”

There had been an agreement to the reciprocal recording of examinations by experts of various disciplines. However, there was objection to the recording of the examination conducted by the defendant’s neuropsychological expert because the examination by the claimant’s neuropsychological expert had not been recorded and:

“ …a patient will perform differently when recorded and as the testing is standardised, the test results may be rendered invalid. A further difficulty is that the claimant who has the ability to re-listen to the testing becomes untestable in the future.”

Permission to record the examination by the defendant’s expert was refused in the specific circumstances of that case because there would not be a level playing field where the examination by the claimant’s expert was not also recorded. However, Martin Spencer J noted the conflict between experts wanting to conduct their tests and carry out their work without any form of recording and the right or ability of a party to challenge reports.

The right to inspect

Where a recording exists and an issue has been raised to which it is of relevance then there would be a duty to disclose it.

There is a right to inspect a disclosed ‘document’, which includes video and audio recordings, except where the party disclosing it has a right or a duty to withhold inspection or where it would be disproportionate to the issues in the case to permit inspection.

This was considered by Martin Spencer J in MacDonald. Inspection of the recording cannot be withheld due to privilege once the report itself has been served:

“In my judgment, the waiver of privilege in relation to a medical examination of a claimant by his own medical expert when that report is disclosed to the other side, should and does entail waiver of all aspects of the examination by the medical expert … in relation to a recording of the examination itself, I consider that the disclosure of the report carries with it a waiver of privilege of the recording.”

Similarly, a party cannot withhold inspection by reliance on Data Protection legislation as those provisions do not apply to personal data where disclosure of the data is otherwise necessary for the purposes of establishing, exercising or defending legal rights.

Concluding thoughts

Recordings of medical examinations are clearly useful from an evidential perspective and will help to protect parties from incompetent experts and ensure high standards are maintained. However, there are competing interests and there may be some circumstances in which the very fact that the examination is recorded may affect the validity of the testing and undermine the conclusions reached.

To address these competing interests, both Master Davidson and Martin Spencer J have called for an industry–wide model to be developed:

" … In personal injury cases, I have suggested that an APIL / FOIL agreed protocol is the way forward. Such a protocol would provide an agreed scheme for the recording of examinations and for the reception of such evidence … I hope that the relevant organisations can give attention to this topic in the future.”
Master Davidson

"In my judgment, these problems and difficulties are best worked out through the joint working party which I understand is in existence between the Association of Personal Injury Lawyers representing claimant lawyers, and the Federation of Insurance Lawyers representing defendant lawyers … any such guidance or protocol for the courts should be informed by the best possible medical and clinical evidence … I would hope that those guidelines will recognise and reflect the competing interests … because of the clear advantage forensically … of recordings which have shown the lack of competence of certain experts instructed in this field.”
Martin Spencer J

Following the Mustard case, the executive committee of the Division of Neuropsychology of the British Psychological Society (BPS) appointed a working party to review its guidance on the recording of neuropsychological assessments. It is understood that the recommendations are in draft form. Hopefully further agreements can be reached by legal and medical representative bodies to ensure consistency and to promote the production of reliable and competent medical evidence which will be to the benefit of all parties, experts and the courts.

In the absence of an established protocol it will likely be difficult to reach an agreement in any given case that the examinations should be recorded. Persuasive reasons why an examination should be recorded need be set out early where possible to set the scene for later challenges by reference to relevance, proportionality and the overriding objective. Such recordings should be simple and will not increase costs to any great extent, if at all.