Commentary

We have previously considered the problem for experts of redacted medical records. This, and the actual disclosure of medical, and also safeguarding, records is an issue in this ongoing personal injury case.

Although it illustrates the tests that the court will apply in deciding on disclosure of records, it also seems to illustrate the oft made point that a case turns on its own facts. In this case disclosure of records relating to a particular letter became unnecessary when it was established that the letter did not relate to the claimant. The relevance of the claimant’s mother’s immigration records arose out of the coincidence in time of a stage in her appeal process and a deterioration in the claimant’s condition.

Learning points

• A high threshold has to be reached for the court to order disclosure of records relating to a third party, such as a sibling, that may assist in understanding the family situation more generally; the test is one of necessity and not just desirability.

• If it is known that a claimant has been subject to safeguarding procedures, the disclosure of the records may be necessary in order to dispose fairly of the claim as experts need to understand any safeguarding concerns surrounding the claimant in order to opine in an informed way on causation. 

• Experts should be prepared to point out what they consider to be an obstructive level of redaction.

• Disclosure can be a process; if the degree of disclosure is considered insufficient to do justice in the case, the court can order further disclosure.

 

Case

This case relates to a personal injury claim arising from a road traffic accident that occurred on 6 April 2010 when the Claimant, (then aged 9, now aged 25), was hit when crossing a road. The driver has since died and the claim is pursued against the personal representatives of his estate and the deceased’s insurers.

Liability for the accident has been agreed on a 50/50 basis. Judgment has not however been entered. The Claimant's case is that she sustained serious injuries in the accident, including a fracture to her left distal femur; a soft tissue back injury; a mild head injury; scarring to her left leg and forehead; significant psychiatric and/or psychological issues resulting in anxiety, low mood, depression, nightmares, chronic pain, fatigue, loss of confidence and self-esteem; and the onset of non-epileptic attack disorder. The Claimant also suffers from non-accident related bilateral keratoconus causing a significant reduction in her vision.

The parties have been granted permission to rely on expert evidence in a number of medical disciplines: orthopaedic surgery, plastic surgery, neurology, neuropsychiatry and ophthalmology.

The Claimant's schedule of loss is not yet fully particularised but she contends that she is significantly disabled, severely disadvantaged on the job market to the extent that there is doubt over her ability to obtain and retain any meaningful employment, and unable to live independently. The unparticularised heads of future loss include claims for care and case management, loss of earnings, accommodation and therapies. The Claimant contends this is a multi-million pound claim.

The position of the defendants is that the accident's role in the Claimant's current presentation, especially in the development of the psycho-behavioural syndrome, is much more minor. They contend there are likely to be other non-accident related factors which are responsible for the Claimant's current condition. It is those potential non-accident related factors that give rise to their desire to obtain disclosure from Birmingham Community Healthcare NHS Foundation Trust, the Secretary of State for Home Department (Home Office) and Birmingham Children's Trust Community Interest Company (the Company) of a complete and unredacted copy of the correspondence sent to the Claimant's GP Practice, dated 18 January 2024, along with any attachment thereto, any and all documents relating or referring to the same safeguarding concerns identified within the 18 January 2024 correspondence, and any other documents which refer to safeguarding concerns pertaining to the Claimant.

The letter of 18 January 2024 is titled "Child Safeguarding – MASH" (Multi-Agency Safeguarding Hub). It is partially redacted. It records various concerns, although the redactions mask the identity of the subject of concern. It forms part of the Claimant's GP records. Because the letter is so heavily redacted, it was and remained unclear how the record related to the Claimant. It was contended that it must relate to her in some way given confirmation from the Claimant's GP practice that the document correctly forms part of her medical records.

The solicitor for Birmingham Community Healthcare NHS Foundation Trust explained that the MASH Letter pertains to a patient ("the Patient"), who is not the Claimant, and is confidential medical information obtained in the context of a private and legally protected clinician-patient relationship. His evidence was that the document was created by a psychiatric liaison team in a Birmingham hospital under the control of University Hospital Birmingham NHS Foundation Trust. He explained that Birmingham Community Healthcare NHS Foundation Trust only has possession of the MASH Letter because it hosts the MASH service for Birmingham and Solihull. He had no direct knowledge of how or why the MASH Letter came to appear in the Claimant's GP records.

He explained that the Birmingham Community Healthcare NHS Foundation Trust owes the Patient a duty of confidentiality under common law clinician-patient confidentiality, the Data Protection Act 2018 and UK GDPR, and the NHS Constitution. He contended that disclosure of the MASH Letter without the Patient's consent is impermissible without a clear and compelling legal justification, and where disclosure is necessary and proportionate. He did not accept that threshold had been met.

By the date of the hearing, matters had moved on. The Claimant's sister attended the hearing and identified herself as the Patient. This disclosure came as a surprise to the Claimant, the defendants and the court. The Claimant's sister objected to her personal, confidential information being disclosed. She explained to the court that she had already found her involvement very stressful and she had contacted her GP to instruct them to remove the MASH letter from the Claimant's medical records as it related to her not the Claimant. The Claimant’s mother expressed her fear that disclosure would have a major adverse impact on the Claimant's sister.

For the defendants it was submitted that the MASH Documents are relevant, regardless of whether the Claimant herself is the subject matter of the MASH Letter, given what the experts said about the importance of understanding the family situation more generally. Although the court was persuaded that disclosure of an unredacted form of the MASH Documents would be desirable to assist the experts, it was not persuaded it met the higher threshold of being necessary in order to dispose fairly of the claim now that the experts knew that her sister not the Claimant is the subject of the MASH Letter. This answered the key question that had been unclear.

As to documents pertaining to safeguarding concerns about the Claimant, the court decided that they might well support the defendants’ case on causation. The neurologists and neuropsychiatrists agreed that possible safeguarding concerns relating to the Claimant might have a bearing on her presentation. The court considered whether the disclosure is necessary in order to dispose fairly of the claim. In its view it is given that the experts need to understand any safeguarding concerns surrounding the Claimant in order to opine in an informed way on causation. Further, the documents were likely fall under the Claimant's duty of standard disclosure in the claim anyway.

The application for Home Office records was an application for records relating to the Claimant's mother's immigration status as it was contended that this and/or threatened removal may have impacted upon the Claimant and the development or maintenance of her psycho-behavioural syndromes. Her immigration status had become an issue due to a redacted letter within the Claimant's GP records. The general practitioner sent a letter, dated 16 January 2020, to iAM Legal Services ("the Immigration Letter"). It was assumed that iAM Legal Services were acting for the mother in respect of her immigration matters and that the Immigration Letter was prepared to set out various adverse effects should she be removed from the country. The general practitioner referred to the Claimant being "completely reliant" on her mother, who cared for the Claimant at all times, tended to all her daily needs, attended all her appointments and acted on her behalf in all circumstances. The doctor expressed the hope that there would be "a positive response with regard to [her] application".

The mother explained that she opposed the application for wholly unredacted disclosure because the documents contain personal and sensitive information about her other three children who are not party to the claim. She maintained disclosure should be proportionate, relevant and, where possible, redacted to protect other children and sensitive third-party information.

The mother’s position had altered somewhat by the date of the hearing. She told the court that she had written her statement under stress and was by then only prepared to consent to the disclosure of documents relating to the Claimant but nothing relating to her own immigration status. She maintained her earlier position that any references to her other children and any third parties should be redacted.

The defendants contended that the immigration appeal hearing in 2014 might well be relevant as it is proximate in time to the Claimant's deterioration. The defendants submitted that it was already known that the Claimant's condition was deployed in support of the mother’s immigration applications and/or appeals, and the experts need an understanding of what was contended and the timeline in order to inform their opinion. It was conceded that any documents relating to other children could be redacted or removed.

There was a general consensus between the relevant neurologists and neuropsychiatrists that external stressors might be relevant to cause of the Claimant's psychiatric and psychological presentation. Those experts identify the mother's risk of removal as a potential external stressor. That was unsurprising. The risk of a parent and primary carer being removing from the country was very likely to be a significant stressor in a child's life, even more so for an injured child. Understanding the risk of removal and applicable timeline might well yield evidence that supports the Applicants' case on causation and/or adversely affect the Claimant's. The court was therefore satisfied that the application for these records should be granted but any references in the documents about the private lives of children other than the Claimant, or third party adults, are to be redacted.

The court decided that the suggestion of the Home Office that the court undertake the exercise of vetting the documents was misguided. Neither s.34(2) of the Senior Courts Act 1981 nor CPR 31.17 envisage the court undertaking such a supervisory role.

The application for Birmingham Children's Trust Community Interest Company records related to case note entries for the Claimant, covering the period from 2009 to 2024. Large sections of the entries, including a long entry in 2018, were redacted. They revealed the Claimant's father contacting the Company in 2017 and expressing concern about the Claimant's care, but the significant redaction means that the experts cannot consider the context and relevance to causation.

The potential relevance of external stressors to causation identified by the neurologists and neuro-psychiatrists in relation to the MASH letter were considered to apply equally to these documents. Indeed, Prof. Carson's letter of 7 January 2026 made express reference to the relevance to determining causation of unredacted copies of the social services records. However a disclosure order was necessary as disclosure was not be forthcoming voluntarily. The Company had made it clear that although it did not oppose the application, it require an order of the court before providing unredacted copies.

No information had been provided as to what type of information had been redacted. Some of the redactions, such as a case note, refer to an unidentified child other than the Claimant. Given the known references in the other documents to the Claimant's siblings, it was possible, indeed likely, that some of the redactions in the social services records also refer to the siblings. Other redactions were more comprehensive, such that it was impossible to glean any substantive details.

There was clearly a risk that information about the private and family life of the Claimant's siblings and/or other third parties might be revealed if wholly unredacted disclosure were to be made. The experts are interested in information about external stressors in the Claimant's life. If that stressor arises from events surrounding a third party with whom the Claimant has contact, it does not necessarily follow that the experts need the name of the other third party. The court was not therefore persuaded that wholly unredacted disclosure was necessary at this stage to protect the defendants' rights to defend the claim. The current level of redaction was however obstructive and impinged the parties' ability to fairly litigate the claim. The appropriate balance was struck by requiring disclosure of the social services records in an unredacted form save to the names or other identifying features of any third party in respect of whose private life is referenced. The redaction must not extend to removal of the ability to identify factual events, and must be limited to the identification of individuals. Once that enhanced level of disclosure has been provided by the Company, it can be reviewed by the parties and their experts to assess whether the disclosure addresses the factual issues relevant to causation. The court made it clear that it will remain open to the defendants, or indeed the Claimant, to renew an application for non-party disclosure if they wish to contend the enhanced disclosure still impedes their ability to assess causation.