A High Court master has urged claimant and defendant lawyers to find common ground on the issue of recordings of medical examinations.
In Mustard v Flower & Ors, Master Davison opted to admit evidence taken of doctors’ medicals despite the experts not knowing their sessions were being recorded.
It was found the evidence, which included two examinations covertly recorded and one accidentally recorded without the doctor knowing, were not unlawful despite – in the case of the covert recordings – being described by the Master as ‘reprehensible’.
As well as ruling on admissibility, Master Davison suggested that the Association of Personal Injury Lawyers and Forum of Insurance Lawyers work together on a protocol governing the recording of examinations.
‘It is [in] the interests of all sides that examinations are recorded because from time to time significant disputes arise as to what occurred,’ said the Master. ‘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.’
In Mustard, the court heard that the personal injury claimant had been advised by her solicitor Christopher Dickinson, to record examinations on a digital device, after defendants had questioned the validity of her claim.
In two cases, permission was never sought, while in another the expert agreed to part of the examination being recorded. This expert denied permission to record neuropsychological testing, which the claimant accepted, but the claimant mistakenly failed to switch off the recording and the machine went on. The doctor who had been accidentally recorded told the court she felt ‘professionally violated, distressed, angry and disillusioned’.
The claimant submitted that recording and observation of clinical examinations were commonplace, and could help to detect any potential incompetence or malpractice.
Master Davison decided to admit the evidence secretly or accidentally recorded, rejecting the recordings were a breach of the Data Protection Act or GDPR.
Whilst the claimant’s actions ‘lacked courtesy and transparency’, the Master said covert recording had ‘become a fact of professional life’ and were not so reprehensible as to outweigh the overriding objective.