The controversial issue regarding the recording of medicolegal examinations has been the subject of 2 significant cases within the last 12 months.
The cases of Mustard v Flower and McDonald v Barton highlight the exact same issues, and yet the judges in each case came to opposing decisions.
In Mustard v Flower, the judge ruled that the claimant’s covert recording of her defending medicolegal examination was permissible due to the fact that the recording was highly relevant and probative. In this case, the recording revealed that the defending expert’s opinion was doubtful due to an array of administrative errors that were identified during neuropsychological testing.
In contrast, the judge decided in McDonald v Barton that the recording of a defending medicolegal examination was not allowed due to overwhelming expert opinion that deprecated such practices.
It will be interesting to see if a protocol will ever be provided in the future that can balance the two conflicting positions.
In the meantime, it is crucial for medicolegal experts to note that there is always the potential that they are being recorded during examinations of claimants – whether that be overtly or covertly.
Please see video below for more information: