Divorce and disclosure of medical records

A GP consulted the MDU about a patient who was undergoing divorce proceedings. The GP had received a letter from the solicitors acting for the patient's husband, informing him that the court had ordered that there should be discovery of the medical reports and records to the patient. The husband's solicitors wished to investigate the patient's 'mental history and admissions to mental hospitals and whether they were compulsory or voluntary'.

The GP knew that his patient was opposed to voluntary disclosure of her records to her husband's solicitors. He was also unhappy about disclosure of the records, not only because of his patient's objection, but because he felt the solicitors had nominated an inappropriate expert to advise them.

The MDU advised the GP to ask the husband's solicitors to send a copy of the court order. As the order was only between the parties to the action, that is the husband and wife, the GP was advised that he would not be in contempt of court if he refused to disclose the records.

Interestingly, there is an authority which suggests that a doctor would in any event be exempt from an order for third party discovery of medical records in this situation. The authority is the case of D -v- D 1911 (55 Sol Journ 331). In this case, a husband, the respondent in a divorce suit, asked the court for discovery of the notes made by a doctor who attended the wife petitioner. The court refused to make such an order. The wife was divorcing her husband on the ground of his alleged cruelty and adultery and alleged inter alia that she had suffered in health as a result of his misconduct. She was attended by a doctor whose fees were paid by the husband. The husband's solicitors wrote to the doctor demanding copies of the medical notes. The doctor said that they were in the hands of the wife's solicitors, and when they refused to hand over the notes, the husband took out a summons. The court refused to make the order and the husband appealed to a judge in chambers. On behalf of the husband it was submitted that no privilege could attach to the notes as they were not made in contemplation of legal proceedings. For the wife it was argued that although the notes were in the physical possession of the wife's solicitors, they were in the legal possession of the doctor whose property they were. The judge favoured the wife's argument and dismissed the summons.

Every day husbands ask doctors how their wives are progressing and vice versa. The doctor often takes for granted the fact that he can keep the partner informed. However, when there is a marital dispute the only safe rule is to insist upon the patient's permission before disclosing information to the other spouse. When divorce proceedings are imminent the solicitor acting for the partner who requests information must produce the other partner's written permission to disclose medical details. If a member is informed by solicitors that the court has ordered disclosure of a patient's records, he would be well advised to ask the solicitors to produce a copy of the order, and send it to the MDU for advice.

On the minor point of the selection of a medical expert, the solicitors are, of course, entitled to select the independent expert of their choice.

This page was correct at publication on 01/01/2002. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.