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Marcus was invited to speak at the Peterhouse Medico-Legal Conference entitled “A conversation between medicine and the law” where delegates from the two professions meet annually and engage in a series of lively debates. The keynote speaker this year was Mr Justice Robin Spencer.
Marcus was invited to present on the subject of the use of covert recordings of medico-legal appointments in injury and clinical negligence litigation.
The use of covert recording is widespread in family law and also prevalent in employment and commercial law cases. It has proved in the past to be decisive in the outcome of injury litigation in resolving misunderstandings between patients and experts, exposing variations in experts’ methodologies often resulting in different conclusions, and occasionally exposing poor practice that has been critical to the outcome of the cases.
In a world where claimants are placed under increasing scrutiny by insurers with covert surveillance, either carried out by operatives of by static cameras strategically placed, and subjected to the intrusion of having their social media footprint monitored by insurers, and where allegations of fundamental dishonesty have tilted the playing field heavily in defendants’ favour in litigation, often recordings of exchanges between claimants and defendant-instructed medical experts represent a last line of defence for claimants who feel their words have been misrepresented or misinterpreted.
Marcus’ presentation considered the implications of the GDPR, now codified within the Data Protection Act 2018, and considered the special considerations that need to attach to any recording of neuropsychological testing to ensure that safeguards are put in place to preserve the proprietary material of the test wording.
The talk generated lively debate at the conference amongst the delegates who were roughly 50% lawyers and 50% medical experts.
At the end of the segment, roughly 50% of the doctors voted in favour of recording of medico-legal appointments and a strong majority of the lawyers voted in favour of it.
The proposal from the speaker was that APIL, FOIL and PIBA should participate in a protocol where in all cases involving damages in excess of £200,000, overt records of each appointment, both claimant and defendant (but excluding neuropsychological testing) should be served with each report. The very existence of such a recording would eliminate most of the poor practice underpinning the trust issues that currently characterise this area of law.
Marcus’ talk can be accessed here.