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Application For Pre-Action Disclosure : Patient
Confidentiality
The Claimant, a nurse, was injured whilst lifting a patient who
weighed approximately 20 stones and was bed bound.
The Claimant's solicitors, following the letter of claim, made many
requests for pre-action disclosure and followed this with an
application to the Court. The application was carte blanche and
listed many items which did not apply to the action. However, of
contention was the request for sight of the patients medical
records and the risk assessments carried out in respect of how she
should be lifted.
The District Judge agreed with our submission that the documents
required fell into 2 areas 1) those pertinent to the allegation of
failure to train and 2) those concerned with the client specific
risk assessment. The latter were protected under the Data
Protection Act and could not be disclosed without Order of the
Court if the Court were satisfied that the same were necessary in
pursuit of legal proceedings.
He had regard to CPR 31.16 which provides that where an application
for pre-action disclosure is made the Court may make an Order if it
is desirable to dispose of the proceedings fairly, assist the
dispute being resolved without the need for proceedings and to save
costs. He decided that in this matter liability was in issue and
the order of disclosure of the documents would not assist in the
early resolution of proceedings and could be dealt with in the
normal course of events by standard disclosure.
He therefore made an Order that the NHS Trust provide a disclosure
statement with regard to the documents pertinent to the failure to
train allegation (which the Trust had stated did not exist) but
made no Order in respect of the risk assessments of the patient or
her medical records.
There was no order as to costs. This was largely due to the length
of time it took for the Trust to answer the Claimant's requests for
the documents, otherwise there would have been an award in favour
of the Trust.