Rights to disclosure

Disclosure of medical records to a defendant's legal advisers is crucial in most personal injury cases and can be particularly important when asking questions of the claimant's medical expert or when instructing an expert. But the release of medical records has always been a contentious issue.

Several cases, prior to the Civil Procedure Rules (CPR), made it clear that full medical records should be disclosed to legal advisers, and disclosed in their entirety. But, since the introduction of the CPR and the Human Rights Act, an increasing number of claimants' solicitors have reverted to refusing to release medical records. This approach has unfortunately received some encouragement in the press from district judges, who consider that blanket disclosure may be a breach of the Human Rights Act.

A recent case gives a good indication of the approach the courts are likely to take.

In Greig v British Airways (2002), the claimant was claiming for a back injury and it was clear from her own report there had been some disc degeneration prior to the accident. It was argued it was vital to obtain access to the notes and records in order to explore the claimant's pre-accident medical history. The claimant's own medical report failed to give not only a prognosis, but also a diagnosis. The claimant was asked to sign a form of consent, allowing the release of all her GP, hospital, DSS and employer's medical records to the defendant's legal advisers. On advice, she refused to sign it. An application was then made to the court for an order that the signed forms of consent be provided. The order was subsequently made without a hearing, which the claimant unsuccessfully applied to vary.

It was argued that partial disclosure of the records prevented the defendant assessing which were the relevant records. And, in respect of the breach of the Human Rights Act, the claimant's right to privacy needed to be balanced against the defendant's right to a fair trial. It was also argued that disclosure of medical records would not amount to a violation of Article 8, because the information would be decisive in assessing the value of the claim.

The court accepted these arguments and agreed that all the records were relevant. This case gives a useful indication to insurers and defendant lawyers, seeking the disclosure of full medical notes from claimants in personal injury cases.

Whether the defendant is entitled to disclosure may depend on the nature of the claim and the circumstances in each case.

Tom Baker is an insurance lawyer with Beachcroft Wansbroughs