Mustard v Flower

This case addresses the question of the lawfulness (or otherwise) of covertly recording an assessment by a medical practitioner.

The Claimant in this case was a victim of a road traffic accident in which her stationary vehicle was rear-ended by the Defendant's Fiat Punto. Notwithstanding the nature of the crash, the Claimant claimed to have suffered a sub-arachnoid brain haemorrhage and a diffuse axonal brain injury, the combined effects of which were said to have left her with cognitive and other deficits.  Significant differences between the Claimant and the Defendant (this being the Second Defendant as insurer to the First Defendant driver) as to the velocity and nature of the crash and resulting injuries led to expert evidence being permitted in eight different categories ranging from orthopaedics to engineering.

It was the Claimant's solicitor's usual practice to advise clients to record consultations with medical experts. In light of this, the Second Defendant invited the Claimant to record and share her examinations with her own medical experts: she did not. The Second Defendant also warned its experts that they were likely to be recorded.

While most of the recordings were done by consent, two were carried out covertly. Furthermore, one consultation with a defendant expert, specifically the one who considered the Claimant to be labouring under a 'factitious disorder', was recorded covertly by accident, the Claimant having agreed to record only half of the consultation but then having inadvertently failed to switch off her recording device.

Those experts who had been recorded covertly objected to the recordings being relied on as evidence on the basis that the practice of covert recording was "wanting in honesty, transparency and common courtesy." The Second Defendant attempted to have them excluded on the basis that they were unlawful under the Data Protection Act 2018 and the General Data Protection Regulations 2016.

Master Davison rejected this submission in fairly short order, holding that the recording of an examination by a doctor would fall into Article 2(c) GDPR, ie that the Regulation does not apply to "the processing of personal data by a natural person in the course of a purely personal… activity."

Despite considering the process of recording covertly to have been 'reprehensible', Master Davison noted that the Claimant had acted on the advice of her solicitor and that her motives had been understandable. He held: 'while her actions lacked courtesy and transparency, covert recording has become a fact of professional life' (para 23). He noted that, once the evidence from the covert recordings had been considered, it was difficult 'to put this particular genie back in the bottle'. Going forward he suggested it would be sensible for an "industry-wide" agreed model on how meetings with expert evidence could be recorded.

This case concerned a personal injury claim, governed by the CPR.  It is, however, of assistance by analogy in relation to the question of the acceptability – in principle – of covert recording of consultations and/or examinations with medical practitioners.  It should be noted, however, that the Vice-President has previously expressed unease with the use of video recording by family members of P for purposes of investigating or assessing capacity or best interests, observing in Abertawe Bro Morgannwg University Local Health Board v RY & Anor  [2017] EWCOP 2 that:

• It is axiomatic that they are highly invasive of [P's] privacy and that he has no capacity to consent to them. They have been viewed by a variety of professionals. […], I do not consider that video recordings should ever be regarded as a routine investigative tool.  Both the videoing and their distribution will require strong and well-reasoned justification.