The High Court has insisted that there must be a “level playing field” when it comes to recording medical examinations.
Mr Justice Martin Spencer said the “problems and difficulties” involved could best be worked out through a protocol being developed by the Association of Personal Injury Lawyers (APIL) and the Forum of Insurance Lawyers (FOIL).
Last October, Master Davison called on APIL and FOIL to agree a protocol on the recording of examinations, which led to the creation of a joint working party on the issue.
Martin Spencer J said the British Psychological Society was also developing guidelines, following the master’s ruling in Mustard v Flower & Ors  EWHC 2623 (QB).
Martin Spencer J said it would be “disappointing” if the guidelines banned all recording because of “the clear advantage forensically” of recordings which have shown the “lack of competence of certain experts instructed in the field”.
The judge was giving case management directions on the issue of whether the neuropsychological testing of a claimant, whose brain was seriously injured in a car crash, should be recorded.
He said counsel for the defendants had persuaded him that a “level playing field cannot be achieved where the claimant has not recorded the examination and testing by his own expert but where the examination testing by the defendant’s expert is so recorded”.
Comparing tests where only one of them was recorded would be “to compare apples and pears” or to compare “tests which have been produced under different conditions”.
Martin Spencer J said the level playing field should apply to “all experts, not just neuropsychological experts”.
He went on: “Experts instructed on behalf of claimants are equally fallible and liable to produce results which are less than accurate, sometimes results which are favourable to the claimant and again, defence experts may wish to be able to examine the process by which those results were obtained in order to see whether they are or are not valid.”
The High Court heard in Macdonald v Burton  EWHC 906 (QB) that, after the traffic accident in Surrey, the claimant, represented by his mother as litigation friend, launched proceedings in April 2019.
The claimant’s solicitor, Christopher Dickinson of London personal injury firm Dickinson Solicitors, wrote to the defendants’ solicitors, BLM, informing them he had advised the claimant to record examinations by the defendants’ medical experts.
Mr Dickinson was also the solicitor in the Mustard case.
Martin Spencer J said counsel for the claimants had asked him to “make some general observations” about the advantages of recordings.
“It is submitted that the recording of examinations will encourage experts to carry out their examinations properly, to adhere to the rules, and recordings provide an objective and irrefutable proof of what is both said and not said.”
The judge observed that, in Mustard, a recording had enabled the claimant’s expert to discover some “fundamental errors” by the defendant’s neuropsychologist in the administration of the tests.
He said in the case before him, audio recording of the examination was “strongly resisted” by the defendants, and their expert, Professor Kemp, held a “very firm view” that testing by neuropsychologists “ought never to be recorded”. Testing already carried out by the claimant’s neuropsychologist had not been recorded.
The professor argued that a patient performed differently when recorded, “and as the testing is standardised, the test results may be rendered invalid”. Further, “the claimant who has the ability to re-listen to the testing becomes untestable in the future”.
Martin Spencer J ruled that the defendants should be allowed to carry out their neuropsychological examination of the claimant “without being subjected to any kind of recording of that examination”.
On the question of whether the claimant’s recording of his own medical examination should be protected by privilege, Martin Spencer J ruled that when a medical report was disclosed to the other side, it carried with it a “waiver of all aspects” of the medical examination.
“A recording of the examination is simply a different aspect of the same waiver. It enables the parties to know whether the record in the report by the expert of what has been said is or is not accurate, but I cannot see any confidentiality or privilege which should be allowed to survive extant from the disclosure of the medical report.”