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Bennett v (1) Compass Group (2) British Ceramic Research, Court of Appeal

23 April 2002
The issues

Medical records – disclosure of medical records to Defendant.

The facts

The Claimant started an action for personal injuries arising from two accidents at work. Liability was in issue. Defendants were allowed to obtain their own medical evidence. They wished their expert to see the notes and hospital records. The Claimant failed to provide an authority. The Defendant applied (without notice) for an Order that she should provide an authority. The Claimant indicated before the Hearing that she would provide the details and general Directions were given by the District Judge as to disclosure and in addition an Order that the Claimant provide a signed form of authority for the release of her GP and hospital records direct to the Defendants. The Claimant appealed. The Judge dismissed the Appeal. The Claimant appealed to the Court of Appeal.

The decision

1. The Claimant’s own expert had seen the records. He had referred to them in his report which was an expert report within Civil Procedure Rules 31.14. It followed that the Defendants were entitled to inspect those documents.

The Claimant undoubtedly had control of those documents under Civil Procedure Rules 31.8(ii)(c) and neither the hospital or GP was therefore a third party entitled to refuse to supply them to the Claimant.

There was no doubt therefore that the Court had the power to Order a Claimant to permit the Defendants referred to in the expert’s document.

2. However, Civil Procedure Rules 3.1(ii)(m) gave the Court jurisdiction to make an Order in general germs. (This is the – notorious? – provision which reads that the Court may “take any other step or make any other Order for the purpose of managing the case and furthering the over-riding objective”). There was no doubt therefore that the Court had the general jurisdiction to make the Order and Dunn -v- British Coal Corporation was quoted with approval.

General guidance was given – the Order had to be carefully worded to ensure that the Claimant’s rights were not infringed. Applicants should only see such records in clearly defined circumstances and the precise nature of what was to be disclosed had to be made clear. There was some force in the argument that the Order made in this case was too wide. In general terms, the Claimant should have control of disclosure of medical records and it was only in exceptional circumstances that a Defendant should have the right to go directly to the GP or hospital.

Comments

A case in which the Court of Appeal take an interesting – if oblique – approach to the whole issue. There is a sting in the tail however in the final paragraphs of the report, both as to the issue of possible editing out of the notes of “irrelevant” records and the subsidiary issue of whether notes should go directly to a Defendant or via the Claimant’s Solicitors.

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