Secret medical recordings ‘reprehensible’ but allowed as evidence

TiredSam

TiredSam

Committee Member
A short report from the Law Society Gazette:
A High Court master has urged claimant and defendant lawyers to find common ground on the issue of recordings of medical examinations.

In Mustard v Flower & Ors, Master Davison opted to admit evidence taken of doctors’ medicals despite the experts not knowing their sessions were being recorded.
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https://www.lawgazette.co.uk/law/se...sible-but-allowed-as-evidence/5101817.article

Original case report here:

https://www.bailii.org/ew/cases/EWHC/QB/2019/2623.html

An extract which shows what the claimant was up against:


  1. This expert accuses the Claimant of factitious disorder (making up her symptoms) and dishonesty, based in part on her neuropsychological test results. Specifically, she concluded of the Claimant:

    "She is at best a hypochondriac, possibly somewhat work shy or struggling at work, but, worse, I think that the extent of her willingness to submit to invasive procedures and investigations does raise the possibility of Factitious Disorder. It has been a lifelong problem for her." (p. 67 of her 1st report)

    "Further, if one considers her medical history, I would suggest to the Court that she is possibly an unreliable witness with regard to her propensity to get over-sensitised to her medical symptoms and problems." (p. 8 of her second report)

    "To do so, I suggest, tends to radically alter the impression and formulation of this young woman's difficulties who, as things stand, is either being caused iatrogenic psychological harm via incessant reinforcement of her illness seeking behaviour or is simply wasting precious resources and money by deliberately exaggerating/falsifying her complaints with a view to personal gain." (p. 4 of her 5th report)

    "Further, once Ms Mustard seems to have decided, or had it suggested to her, that Dr McCulloch's opinion was not necessarily helpful to her, I find it disappointing that she then appears to be trying to make Dr McCulloch out to have carried out an inadequate assessment preferring and endorsing the ministrations of a practitioner who has been struck off the HCPC Register. I think that Ms Mustard is a potentially quite a "dangerous" woman." (p. 48 of her 6th report)

    "I would suggest that these are not the only, or the important, reasons for failure and, again, that Ms Mustard either deludes herself or is deliberately manipulating the truth and/or withholding relevant information when she offers them as reality. … I think that Ms Mustard was probably punching well above her weight in her job, given her well documented lack of academic aptitude. She got by not with her professed "talent and ambition" but by "buddying up" and being over-familiar and inappropriate in terms of professional boundaries with some of her seniors to the point where they felt that they "owed" and/or could not challenge her. Anyone who did ran the risk of being "seen off"." (p. 49 of her 6th report).
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Not sure what could be considered reprehensible about this. The content of a medical consult should be the property of the patient with no exceptions. There is literally no other way to deal with incompetent and malicious physicians and, sadly, they are legion. The behavior that some display behind closed doors is frankly shocking and needs to be exposed. This should happen way more often, if not the default.

I have never dealt with this level of malicious incompetence, but the notes from the physicians shown here are of someone who clearly should never have been granted a medical license and is highly unprofessional, clearly confusing the voices in their heads for something other people should hear and should be written down.
 
rvallee said:
Not sure what could be considered reprehensible about this.
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The idea, which I would agree with in principle, is probably that secret recording would undermine relations in an atmosphere of good faith.

Of course it would be naive (especially for a judge - I mean, come on) to suppose that this medico-legal process plays out in good faith. It looks so poisonous and underhanded, as you say, that maybe we would expect surveillance improve the situation.

On the other hand, if it's an arms race between patients and insurance companies/employers/the state, corporations and government have the resources to totally surveil individuals in public to manufacture evidence in their interest. We know this already happens to some degree, in some cases. Not to mention squads of lawyers who can sit around figuring out how to abuse laws in their favor.

In any case I would agree that bringing transparency to the methods used by these actors should be beneficial. Given the power asymmetry it also seems that regulations should favor individuals much more strongly in this process so as to avoid a constantly losing 'arms race'.
 
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All medico-legal encounters should be fully objectively documented, meaning at least a high quality audio recording, and preferably a video recording. There should be no doubt about who said what. These processes and decisions must be open to scrutiny, and that can only happen if there is an objective record of them.
 
rvallee said:
Not sure what could be considered reprehensible about this.
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James Morris-Lent said:
The idea, which I would agree with in principle, is probably that secret recording would undermine relations in an atmosphere of good faith.
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My GP surgery already records all patient appointments. I have no idea whether voices are recorded or not (I suspect they are, but who knows), but pictures definitely are. I know these recordings are being made because there were announcements made to patients when they started, but the surgery hasn't mentioned them again since. I don't think they would deny doing it, but they don't make it obvious what they are doing.

So, if the GPs are doing it, why should it be different for the patients?
 
I am twenty years out of date, but when I worked in the NHS the guidelines were no recording, video or audio, without the patient’s consent and then such could only subsequently used within the scope of that original consent.

When videoing, I would also ask if I could video the formal granting of consent, particularly in situations where written consent was not an option.

I had always assumed that this had a legal basis, but in retrospect I am not sure what basis I had for that assumption.

Presumably in the @Arnie Pye example of the GP surgery recording all consultations, all patients should be have been [informed] at some point in time that this was happening, then it is assumed asking for an appointment involves tacit consent to the recording. However if it is happening without the patient’s knowledge and at least tacit consent, it is certainly something I would be very unhappy about.
 
Peter Trewhitt said:
I am twenty years out of date, but when I worked in the NHS the guidelines were no recording, video or audio, without the patient’s consent and then such could only subsequently used within the scope of that original consent.

When videoing, I would also ask if I could video the formal granting of consent, particularly in situations where written consent was not an option.

I had always assumed that this had a legal basis, but in retrospect I am not sure what basis I had for that assumption.

Presumably in the @Arnie Pye example of the GP surgery recording all consultations, all patients should be have been [informed] at some point in time that this was happening, then it is assumed asking for an appointment involves tacit consent to the recording. However if it is happening without the patient’s knowledge and at least tacit consent, it is certainly something I would be very unhappy about.
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See the below link for the General Medical Council's guidance on this:

https://www.gmc-uk.org/ethical-guid...using-visual-and-audio-recordings-of-patients
 
When I referred to my surgery making recordings of consultations with patients I remember that I was under the impression at the time that the main impetus for the recordings was security, for use as evidence if a doctor or other member of staff was attacked. I'm not sure that the recordings were intended as a permanent record to be kept with the patient's medical records. But I can't remember exactly what was said at the time the information about recordings was made public and I can't find any reference to these video recordings on the surgery's web site.

It's just occurred to me to wonder, if the surgery changed the purpose of the recordings i.e. they decided to keep recordings of some or all individual patients long term, they could do so without changing their physical set up. (Rhetorical question.) Would they admit to such a change of use?
 
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