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Claimant told not to record medical examination

The British Psychological Society to provide guidance on the use of audio recordings of neuropsychological test in personal injury cases.

Claimant refused permission to record neuropsychological tests in order to provide “a level playing field”. The British Psychological Society to provide guidance on the use of audio recordings of neuropsychological test in personal injury cases.

Following on from the decision in Mustard v Flower, we take a look at Justice Martin Spencer’s decision in the case of Rory MacDonald (by his litigation friend Lindsay MacDonald) v Simon Burton [2020] 3 WLUK 235, to refuse the claimant permission to record the defendant’s neuropsychological tests.

Background

As in Mustard v Flower, this claim arises from a road traffic accident in which the claimant alleged that he sustained brain injuries. The defendant’s neuropsychological expert did not want his tests to be recorded as the “recordings would change the dynamics of the examination, potentially invalidating the results”.

There was however no recording of the claimant’s neuropsychological tests that had already taken place.

Outcome

It was held that there needed to be a level playing field in respect of the testing. As the claimant had not recorded his testing,he could not record the defendant’s expert’s testing.

The court also specifically warned the claimant not to conduct any covert recording on the testing.

The court declined the opportunity of providing wider guidance however, leaving that to the British Psychological Society (“BPS”) who are due to provide some direction shortly.

Discussion

It is pleasing to see the court push back on the use of covert recordings during examinations. We of course welcome guidance from the experts at BPS on the use of recordings in neurological tests and expect this to address the disparity in results that can flow from recording testing and also setting out best practice so that confidence in the testing can be maintained.

However, we expect there to be further contentious cases that do not involve neurological testing and the case remains fora consistent approach. We continue to work with FOIL and BPS to ensure that defendants’ interests are protected.

If you would like to discuss further, please liaise with Liam McGuire, Partner on 0151 242 0889 or at liam.mcguire@weightmans.com or Karim Ariane, Associate on 0151 243 3313 or email at karim.ariane@weightmans.com.

 

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