Since the pandemic, the issue of covert recordings of medical examinations has risen to the fore following the drastic increase in use of technology to deliver patient care (telephone consultations, video consultations), making covert recording easier than ever before.

It is therefore relevant to revisit the most recent authority on the admissibility of covert recordings of medico-legal examinations: Mustard v Flower [2019] EWHC 2623 (QB).

In Mustard, the Claimant was involved in a road-traffic accident, which on her case was a “medium velocity impact” causing a sub-arachnoid brain haemorrhage and diffuse axonal brain injury manifesting with “subtle” cognitive deficits. The Defendant contended the impact was minor and she suffered no injury, or a very minor injury.

Permission was given for expert evidence in eight fields. Following advice from her solicitor, the Claimant recorded her medico-legal examinations with the Defendant’s medical experts and, with three of those experts, did so covertly. The Defendant was aware that the Claimant’s solicitor often advised his clients to record consultations and invited the Claimant to do so with her own experts, however in the event she did not.

It was conceded by Counsel for the Defendant that the covert recordings were relevant and probative evidence. The judgment was therefore primarily concerned with whether the court should exercise its discretion under CPR 32.1(2) to exclude from evidence the recordings that would otherwise be admissible.

The Argument

The Claimant argued that the stance of the GMC and other medical defence organisations was that it was lawful for patients to make covert recordings of consultations with their doctor. If the Defendant’s application were allowed, surveillance evidence often carried out by Defendant insurers would be equally unlawful.

In addition, the Claimant argued in relation to the specific facts of the case that doubt had been cast on the Defendant’s neuropsychological expert’s examination and testing, which could not be ‘unknown’ and it would be artificial to expect the experts and the Claimant to give evidence without reference to such matters. Further, that the Defendant’s experts had been informed by their instructing solicitors that the Claimant was likely to be recording the consultations.

The Defendant on the other hand argued that: the recordings had been obtained improperly or unlawfully (under the Data Protection Act 1998 (“DPA”) or the General Data Protection Regulation (“GDPR”)); they could distort the nature and dynamics of the examination and results; they could render patients assessable in future; and created inequality of arms in terms of laying open the Defendant’s expert’s testing to scrutiny when the same treatment was not given to the Claimant’s expert examinations.

The Lawfulness of Covert Recordings

The argument as to the lawfulness of the recordings was dealt with briskly by the Master: the recordings were not unlawful, they were made “by a natural person in the course of a purely personal … activity” in which circumstances neither the DPA or GDPR applied.

As to how this affects the regular patient, the Medical Defence Union’s website presently states that although doctors need to obtain a patient’s consent before making any recording, patients do not need to obtain permission from a doctor because they are processing their own personal information.

The British Medical Association’s position is however more guarded, and suggests that a doctor’s “common law privacy rights” are likely to be engaged where patients make audio or visual recordings without a doctor’s consent.

It must be right that a patient is entitled to make recordings for their own personal use in order to fully comprehend their medical advice, treatment options, ask appropriate questions, make decisions about their own health and for the purposes of asserting their legal rights.

It does, however, seem to be a different scenario where a Claimant sets out to make secret recordings of a doctor who is not providing them with advice or treatment, but conducting an examination for the purposes of reasoning a medical diagnosis and a prognosis to be scrutinised by parties to litigation.

The Master highlighted a “carve out” in Article 6 GDPR and section 8 DPA, which refer to the lawfulness of processing of data when it is necessary for the administration of justice. Furthermore, the Master also referred to Schedule 2, section 5 DPA, which gives an exception where the disclosure of the data is “necessary” for the purpose of or in connection with legal proceedings, obtaining legal advice, or otherwise necessary for the purpose of establishing, exercising or defending legal rights. One has to query whether on the facts of Mustard at least, it was in fact necessary for the Claimant make a recording of a medico-legal assessment, however it must be implicit that this requirement was met.

The Judgment

The Master held that the balance fell in favour of admitting the evidence, considering that test was: “whether the public policy interest in excluding evidence improperly obtained was trumped by the important (but narrowed) objective of achieving justice in the particular case”. In effect, the consideration was whether the evidence, its relevance and probative value outweighed any effect that admitting it would have on the fairness of the litigation process and the trial.

In relation to the equality of arms argument, the Master re-iterated the Claimant’s submission that the Defendant had not queried any aspect of the examinations by the Claimant’s experts. This is somewhat surprising as it is difficult to pick out flaws in an unknown methodology, in circumstances where the test subject is not the Defendant’s client so it is not possible to discuss the evidence with her as she would have been able to do with her own instructing solicitors.

Considering fairness, it was accepted that if the Claimant’s motivation was to protect her own interests having regard to her alleged vulnerability (it was alleged that her subtle brain injury could lead to memory problems, fatigue and clumsy answers that were liable to be misinterpreted), then it was understandable that she wished to record the examinations with the Defendant’s medical experts.

Future Ramifications?

The Judgment certainly does not lay down any new principle in relation to the admissibility of recordings as such, or any rule that covert recordings of medico-legal examinations are always to be admitted in evidence. It is a matter upon which the Court must exercise its discretion under CPR 32.1(2), no doubt having regard to the overriding objective, in particular the need to deal with cases justly.

In a postscript to the Judgment, the Master commented that whether covert recordings were to be admitted fell to be decided on a case-by-case basis and that this “thorny” issue was not susceptible to guidance that could be applied across the board. The Master also suggested that whilst the Claimant’s actions lacked courtesy and transparency, “covert recording has become a fact of professional life” and the sooner the Association of Personal Injury Lawyers (APIL) and the Forum of Insurance Lawyers (FOIL) could agree a protocol governing the same, the better.

Thus far the writer is unaware of any such action having been taken. Any such protocol should address the potential for recordings to be made by Claimants and experts alike, as this Judgment may open the door to applications, by either side, for recordings and test data to be made available to like-discipline experts for scrutiny and/or critique.

It is suggested that only a bilateral protocol with duties on both practitioners conducting examinations and subjects of those examinations, would restore respect between parties to litigation and experts assisting their clients but under an overriding duty to the court.