The clinical benefit of good notes and records, both to healthcare professionals and their patients, is obvious. What is sometimes less well understood are how important such notes and records can be in the decisions reached by judges on medico-legal issues. A note may be decisive in proving or disproving a given fact or an entire claim.

Whether records are stored electronically or in hard-copy, they are treated in more-or-less the same way by lawyers. The first point to grasp is that the confidential nature of the record, so important in the health sector, does not prevent them being made available to either party involved in litigation. As the Supreme Court noted in Payne -v- Shovlin [2006] IESC 5, the general principle is that all such records (and the information which they contain) can be disclosed to a court, notwithstanding any duty of confidentiality which may exist. The process by which documents are listed and exchanged is known as “discovery”. The parties will generally agree the categories of documents which each is required to discover and will review all their files to identify each individual note or document which is responsive to these categories. These are then listed and the correctness of the list is the subject of a sworn affidavit.

Those swearing an affidavit of discovery can be cross-examined on its correctness.

This duty to disclose all documents when requested to make discovery is subject to a number of exceptions, known as “privilege” against disclosure. It may be necessary to examine each document to see if it is privileged. Notes or records made in the context of litigation or as part of the lawyer-client relationship may be privileged.

In the case of Smurfit Paribas Bank v AAB Export Finance [1990] 1 I.R. 469, Finlay CJ explained :-

“The existence of a privilege or exemption from disclosure for communications made between a person and his lawyer clearly constitutes a potential restriction and diminution of the full disclosure both prior to and during the course of legal proceedings which in the interests of the common good is desirable for the purpose of ascertaining the truth and rendering justice. Such privilege should, therefore, in my view, only be granted by the courts in instances which have been identified as securing an objective which in the public interest in the proper conduct of the administration of justice can be said to outweigh the disadvantage arising from the restriction of disclosure of all the facts.”

The scope of the privilege against disclosure was at the heart of Gallagher v Stanley [1998] 2 I.R. 267 – a tragic case where the plaintiff had suffered perinatal asphyxiation, allegedly due to the negligence of the obstetrician and defendant hospital. The plaintiff sought copies of the notes and reports compiled by nurses and other staff shortly after his birth. Were these properly categorised as records of the birth or as reports which had been prepared to help lawyers and insurers in evaluating whether there was likely to be a claim? O’Flaherty J of the Supreme Court noted :-

“The recognition of legal professional privilege goes back many centuries. The privilege attaches to confidential communications passing between lawyer and client for the purpose of obtaining legal advice or assistance and also where litigation is contemplated or pending … its purpose is to aid the administration of justice, not to impede it. In general, justice will be best served where there is the greatest candour and where all relevant documentary evidence is available.”

To be continued.

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