Guidance on the recording of medico-legal appointments

14/05/2020

You are invited to a webinar by Marcus Grant:

WEBINAR NOW FULLY SUBSCRIBED

Date:  28th May 2020
Time: 4pm for 1hr (CPD accredited)
Speaker: Marcus Grant

In the recent case of Macdonald (By His Litigation Friend, Lindsay Macdonald) v Burton Martin Spencer J acknowledged that there was a need to record expert appointments in some higher value cases to protect litigants (mainly claimants) against experts who are ‘incompetent or worse’. This case followed on from the decision in Mustard v Flower,  Marcus Grant acted in both cases on behalf of the Claimant.

Macdonald (By His Litigation Friend Lindsay Macdonald) v Burton [2020] EWHC 906 (QB)

What did the court decide?
The court acknowledged that a recording of a medicolegal appointment was the best evidence as to what was, or was not said by both a claimant and an expert. The court observed that what went on at a medicolegal appointment was frequently a point of dispute between the parties. The court acknowledged that recordings obtained historically by claimants both covertly and overtly had shown a lack of competence on the part of experts that could have resulted in injustice without the recording.

However, the court was quick to emphasise that poor methodology on the part of an expert was not restricted to defendants’ experts, and that if recording evidence is to be admitted into evidence, there needed to be a level playing field and transparency in which defendants should be able to review what was said during the claimants’ expert appointments too.

The fact that an appointment was being openly recorded would likely eliminate much of the mischief underpinning the desire to record, in that the questioning would likely be fair, methodology sound etc. It was observed that in the vast majority of cases, the recordings would not need to be listened to because the ‘vast majority of experts instructed are competent and honest’.

On the thorny question of recording neuropsychometric testing, which involves use of proprietary testing material that would lose its value if it fell into the public domain, the court found that additional safeguards would need to be implemented to avoid that happening. The court was informed that the British Psychological Society’s Division of Neuropsychologists was contemplating instituting a blanket prohibition of recording of medicolegal neuropsychometric testing. The court ruled that such a blanket prohibition would be ‘disappointing’ given that recordings had revealed a ‘lack of competence of certain experts instructed in this field’.

Finally, the court indicated that it was reluctant to provide any ‘ex cathedra guidelines or instructions’ given that it was aware that the joint working party of APIL and FOIL was working through these issues to come up with a solution which satisfies the interests of justice from the point of view of both claimants and defendants.

What are the practical implications of this case?
The practical implications of this case are that claimants will be permitted going forwards, subject to the circumstances of the case, to record defendant medico-legal appointments (with the exception of the neuropsychometric testing element of neuropsychological appointments which requires additional safeguards), provided that they have first recorded their own experts of like discipline. They must disclose a copy of that recording with their experts’ evidence, as part of their experts’ evidence.

This webinar will give injury lawyers, experts and the judiciary an opportunity of understanding some of the issues thrown up by the thorny issue of recording of expert appointments, so that they may consider the merits going forwards of enacting a protocol of recording of expert appointments in higher value or more contentious cases, or cases involving vulnerable claimants.

We very much hope you are able to join on the 28th May.