Commentary

We have previously considered the problem for experts of redacted medical records. This, and the actual disclosure of medical, and also safeguarding, records is an issue in this ongoing personal injury case.

Although it illustrates the tests that the court will apply in deciding on disclosure of records, it also seems to illustrate the oft made point that a case turns on its own facts. In this case disclosure of records relating to a particular letter became unnecessary when it was established that the letter did not relate to the claimant. The relevance of the claimant’s mother’s immigration records arose out of the coincidence in time of a stage in her appeal process and a deterioration in the claimant’s condition.

Learning points

• A high threshold has to be reached for the court to order disclosure of records relating to a third party, such as a sibling, that may assist in understanding the family situation more generally; the test is one of necessity and not just desirability.

• If it is known that a claimant has been subject to safeguarding procedures, the disclosure of the records may be necessary in order to dispose fairly of the claim as experts need to understand any safeguarding concerns surrounding the claimant in order to opine in an informed way on causation. 

• Experts should be prepared to point out what they consider to be an obstructive level of redaction.

• Disclosure can be a process; if the degree of disclosure is considered insufficient to do justice in the case, the court can order further disclosure.

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