Until July 1994 an examination performed in connection with a case of alleged police assault gave
rise to a unique doctor/patient relationship. It appeared that the findings of that examination when
produced in a report form could not be disclosed to another party (i.e. other than the Police
Complaints Authority (PCA)) in a civil action without the courts having decided that the interests of
justice overruled the Public Interest Immunity.
There is a catalogue of case law relating to this; 23 the main authority being Neilson v Laugharne.
There were a number of cases where disclosure was allowed, in any case, such as criminal
proceedings24 against the police officer or against the complainant.
However a recent House of Lords ruling in two cases25 has overruled Neilson v Laugharne. Though
Public Interest Immunity (PII) may still apply to certain documents of a Police Complaints
Authority investigation, it is now no longer considered that all documents produced in such an
investigation form a class of documentary evidence that should be so protected. It appears inherent
in this recent judgement of Wiley and Sunderland, that medical reports are not covered by PII.
As long as the FMEs findings do not contain information which relates to police operational
procedure, or to the identification of third parties, the doctor should be free to provide a report freely
in consideration only of the consent obtained.
What Should be Disclosed
This is a difficult question. The forensic examiner should make comprehensive notes including all
that may possibly be relevant.
It may be that part of the medical record is then considered not only irrelevant but a potential source
of mischief.
The FME in these circumstances must remember that he or she is party to only one aspect of a case.
There may be items which the FME does not wish to disclose. An example may be previous sexual
history from a complainant. Sexual intercourse with a male other than the one accused only hours
before must be included in the findings as such a situation may have great significance to the
interpretation of the scientific evidence. The time scale in this example can be arbitrary. In the
principal authors opinion seven days should be the minimum dividing linee before an FME
considers excluding the section of such information with regard to a previously sexually active
female.
The example above is often not the case and previous sexual history may not be considered to be
relevant to the case in question. If that is so, such ''confidential" knowledge need not be disclosed at
the time, but its existence should be declared along with the opinion of the FME concerning its
irrelevance and with a claim of Public Interest Immunity. It may then be left for the judge to decide
whether the evidence can be looked at in court, initially in the absence of the jury, if so requested by
an expert advising the other side.
Hard and fast rules cannot easily be made to safeguard the disclosure of material
e NB Chapter 8 should be read with regard to the recovery of genetic material.
that is relevant and only that material, and each case must be judged on its own merits.
FMEs cannot become judge and jury and must serve the judicial system . . . warts and all!
Quick Reference
• Check consent form to determine for whom information disclosure permission was granted.
Write report for only those persons indicated by the consent.
• Was informed consent received for disclosure?
Write to patient to request section consent.
• Is there confidential information in your notes which you believe is irrelevant to the subject in
question?
Omit this other information, write a covering letter indicationg its presence and claim
Public Interest Immunity from disclosure.
rise to a unique doctor/patient relationship. It appeared that the findings of that examination when
produced in a report form could not be disclosed to another party (i.e. other than the Police
Complaints Authority (PCA)) in a civil action without the courts having decided that the interests of
justice overruled the Public Interest Immunity.
There is a catalogue of case law relating to this; 23 the main authority being Neilson v Laugharne.
There were a number of cases where disclosure was allowed, in any case, such as criminal
proceedings24 against the police officer or against the complainant.
However a recent House of Lords ruling in two cases25 has overruled Neilson v Laugharne. Though
Public Interest Immunity (PII) may still apply to certain documents of a Police Complaints
Authority investigation, it is now no longer considered that all documents produced in such an
investigation form a class of documentary evidence that should be so protected. It appears inherent
in this recent judgement of Wiley and Sunderland, that medical reports are not covered by PII.
As long as the FMEs findings do not contain information which relates to police operational
procedure, or to the identification of third parties, the doctor should be free to provide a report freely
in consideration only of the consent obtained.
What Should be Disclosed
This is a difficult question. The forensic examiner should make comprehensive notes including all
that may possibly be relevant.
It may be that part of the medical record is then considered not only irrelevant but a potential source
of mischief.
The FME in these circumstances must remember that he or she is party to only one aspect of a case.
There may be items which the FME does not wish to disclose. An example may be previous sexual
history from a complainant. Sexual intercourse with a male other than the one accused only hours
before must be included in the findings as such a situation may have great significance to the
interpretation of the scientific evidence. The time scale in this example can be arbitrary. In the
principal authors opinion seven days should be the minimum dividing linee before an FME
considers excluding the section of such information with regard to a previously sexually active
female.
The example above is often not the case and previous sexual history may not be considered to be
relevant to the case in question. If that is so, such ''confidential" knowledge need not be disclosed at
the time, but its existence should be declared along with the opinion of the FME concerning its
irrelevance and with a claim of Public Interest Immunity. It may then be left for the judge to decide
whether the evidence can be looked at in court, initially in the absence of the jury, if so requested by
an expert advising the other side.
Hard and fast rules cannot easily be made to safeguard the disclosure of material
e NB Chapter 8 should be read with regard to the recovery of genetic material.
that is relevant and only that material, and each case must be judged on its own merits.
FMEs cannot become judge and jury and must serve the judicial system . . . warts and all!
Quick Reference
• Check consent form to determine for whom information disclosure permission was granted.
Write report for only those persons indicated by the consent.
• Was informed consent received for disclosure?
Write to patient to request section consent.
• Is there confidential information in your notes which you believe is irrelevant to the subject in
question?
Omit this other information, write a covering letter indicationg its presence and claim
Public Interest Immunity from disclosure.
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