Access to Medical Records—Discovery, Confidentiality and Privacy
| Author | Gerald Dworkin |
| DOI | http://doi.org/10.1111/j.1468-2230.1979.tb01513.x |
| Date | 01 January 1979 |
| Published date | 01 January 1979 |
NOTES
OF
CASES
ACCESS
TO
MEDICAL RECORDS-DISCOVERY, CONFIDENTIALITY
THE
medical record is
at
the core of the confidential doctor-patient
relationship. It usually contains personal, sensitive information and
any unauthorised disclosure by the doctor has legal and professional
consequences. Many aspects of confidentiality in health care are of
current concern. The subject of this note primarily concerns the
relationship between the patient and his own medical record.
One of the long established cases where medical confidentiality
may
have to be broken is in judicial proceedings.
In
the United
Kingdom
a
doctor has no immunity if called upon by the court
to give evidence, although ways exist of softening the impact this has
upon the medical conscience.
It
has also long been possible to
obtain an order for discovery of medical records in personal injuries
litigation. In
1968
the Winn Committee proposed that the judicial
power to order discovery should be widened on the grounds that
early disclosure of reports would conduce to the settlement of
actions on terms that were fair to both sides or, failing that, to the
preparation of an agreed medical report and
so
avoid the need to
call medical experts at the trial. The Administration of Justice Act
1970
implemented these proposals: section
32
provides that after
proceedings have commenced any parties thereto may apply for
a
court order compelling a person who is not a party to the proceed-
ings to disclose and produce documents to the applicant; section
31
contains similar provisions in favour
of
a
potential
plaintiff against
a
potential party to the proceedings-that is, before it is known
whether proceedings can or will be commenced. Each section pro-
vides that discovery is made
“
to the applicant.”
The medical profession was uneasy about this development: it
could have serious effects upon the privacy of clinical records of
individual patients; it might encourage
“
fishing expeditions
”
where-
by patients might try to seek information for the purpose of pursuing
unjustifiable claims; and, as will be discussed later, it could be
distressing for the patient to see his own record. Responding to these
fears, the Court of Appeal in
a
series of decisions* held that the
statutory powers to order production of medical records
“
to the
applicant
”
should be confined
to
“
medical advisers
of
the appli-
cant.” Thus, a plaintiff and his legal advisers were able to discuss
medical matters with their medical adviser who could answer ques-
tions by reference to the medical notes and records but he was not
able to allow the plaintiff or legal adviser to read them.
AND
PRIVACY
I
Report
of
the
Committee
on Personal Tnjuries
Litigation.
1968.
Cmnd.
3691.
a
Dunning
v.
Unired Liverpool Hospital
[1973]
2
All
E.R.
454;
Parerson
v.
Northampton
H.M.C.
[1974] 2
All
E.R.
772;
Davidson
V.
Lloyd Aircraft Services
[1974]
3
All E.R.
1;
Deistung
v.
S.W.
Merropoliran R.H.B.
[1975]
1
All
E.R.
573.
88
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