Keep It Legal.
Documents and their disclosure are a key component of every case Vicky Rowlands and Emma Summerfield work on as clinical negligence solicitors.
Here they outline the basic rules of disclosure and give some key tips about record keeping to help you in your everyday practice.
The legal framework relating to the rules of disclosure in a clinical negligence claim and your obligations as a party to proceedings is vast.
We will therefore focus on the very basic principles forming the basis of the duty of disclosure, specifically within a clinical negligence claim.
What is often referred to as ‘standard disclosure’ requires a party to disclose any document in its control:
On which it relies;
Which adversely affects its own case;
Adversely affects another party’s case;
Supports another party’s case.
The starting point therefore has to be the definition of a document. Disclosure is often something which is found to be incomplete. It is therefore important to understand precisely what falls within the definition of a ‘document’.
The Civil Procedure Rules provide a very wide definition of ‘Anything in which information of any description is recorded’.
While not a definitive list, this is likely to include:
- The full medical records –including any recordings of phone appointments, booking notes made by secretaries or the reception team, clinical notes and correspondence;
- Complaint documentation and internal investigation documentation – with some exceptions discussed below – relevant policies and guidelines in place at the time.
When requests for documents are raised during litigation, either by your own solicitor or those acting for the other party, it is important to make a reasonable search for all documents that could be relevant to the case.
Two main types of privilege mean that a document does not need to be disclosed.
1. Legal professional privilege
The usual definition given for this is communications which have the purpose of giving or receiving legal advice. This means that any correspondence prepared during the claim process between you and your solicitor will not be disclosable to the other party.
2. Litigation privilege
This means that any documents prepared as part of the claim process – such as comments obtained from treating clinicians, or internal communications about the case – are not disclosable.
But, to rely on this exception, you must be able to demonstrate that documents were prepared in contemplation of legal proceedings arising out of the incident.
If a party wishes to run this argument, they have to be able to say that the litigation is the dominant purpose the document was prepared for.
So, for example, if an internal investigation has taken place prior to the claim being brought or even mentioned by the patient, even if it is the same subject matter of a claim which subsequently follows, the documents relating to that investigation would usually need to be disclosed.
These would include any final complaint response or investigation report, but also any internal communications from within the organisation or comments obtained from clinicians involved in the care.
These documents were not created with the dominant purpose being the litigation and so they would usually need to be disclosed.
However, any documents created following notification from a patient that they intend to claim would usually be protected from disclosure.
Timing of disclosure
During the pre-action process before court proceedings are commenced, the Civil Procedure Rules provide the potential claimant with the mechanism for obtaining disclosure.
The rules relating to this are discretionary and are subject to the claimant establishing that they and the potential defendant would be the likely parties to the future claim and that it is desirable for fair disposal of the claim and to save costs that such documents would fall part of standard disclosure.
Once proceedings have been initiated, a defendant is under an on-going duty of disclosure.
You may find that your solicitor contacts you to request disclosure of any available documents and it is important these are provided.
As part of the litigation process, each party has to create a ‘List of Documents’ containing everything relevant to the claim and disclosable – that is to say, it does not fall under either of the privilege arguments set out above. It is extremely important that this is a full and accurate list.
From your perspective as clinicians, one of the most important sets of documents which should be disclosed and included on the List is the medical records.
Medical records are a well-established and crucial part of clinical practice. They detail what happened during an appointment with a patient.
This includes any relevant history, any investigations or examinations undertaken and the outcome – possibly a diagnosis, a prescription, a referral to another specialty, a follow-up appointment or a conclusion that nothing further needs to be done.
Importantly, the records act as a reminder should you see the patient again or inform other medical professionals as to the appointment should a patient be referred to them or come back at some later time for further assessment.
From our perspective as clinical negligence solicitors, the records are also one of the most crucial pieces of evidence when investigating a claim.
The medical records enable independent medical experts to assess the care provided to advise on whether it was of a reasonable standard and, if any factual disputes arise, a clear, detailed contemporaneous record can be persuasive to a judge as to what happened during the appointment.
In the GMC’s Good Medical Practice guide, it states that doctors must record their work clearly, accurately and legibly and should make records at the same time as the events you are recording or as soon as possible thereafter.
We have drawn on our experience of reviewing records to provide some advice on ensuring good records (see box opposite).
While we appreciate that time is limited and there is a balance to be struck in what can realistically be recorded, these tips should help ensure your records are an accurate reflection of the appointment and therefore useful should you or anyone else need to review them.
Remember, if you are ever unsure as to whether a document is disclosable, the best thing to do is send a copy to your solicitor so they can advise accordingly.
Finally, from a solicitor’s point of view, if something isn’t documented in the records, it’s very difficult to prove that it happened.
Vicky Rowlands and Emma Summerfield (second right) are associates at Hempsons solicitors