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GILLIAN COWIE AGAINST VITALITY CORPORATE SERVICES LTD [2024] ScotCS CSOH_65 (27 June 2024)
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OUTER HOUSE, COURT OF SESSION
[2024] CSOH 65
A204/21
OPINION OF LORD SANDISON
In the cause
GILLIAN COWIE
Minuter
against
VITALITY CORPORATE SERVICES LTD
Respondent
Minuter: O'Neill KC, Welsh; Balfour & Manson LLP
Respondent: McBrearty KC, R Mitchell; Burness Paull LLP
27 June 2024
Introduction
[1]
In November 2015 Mr Mark Cowie applied for and obtained insurance over his own
life in the sum of £500,000 from a South African-based insurance company trading in the UK
as "Vitality". He died suddenly in October 2016, and his widow Mrs Gillian Cowie made a
claim on the policy. In circumstances to be later examined in detail, Vitality obtained certain
medical records pertaining to Mr Cowie and, on the basis of what they contained, declined
the claim on the basis that he had not fully disclosed his medical history when he applied
for the policy. Mrs Cowie has raised an action against Vitality seeking payment of the sum
insured. A question has arisen as to whether the medical records obtained by Vitality may
2
be used as evidence in the proof which has been allowed in that action. Given the
importance and complexity of the issue, it was thought appropriate to determine it
separately from, and in advance of, the general proof by way of a Minute and Answers
process. I heard a 4-day diet of proof in that process.
The proof
[2]
At the commencement of the proof diet, senior counsel for Vitality stated that it
had become apparent that the general practitioner who had provided Mr Cowie's medical
records now considered that certain material (which was listed) ought not to have been
provided to Vitality as it fell outwith the scope of the request for information which had
been made to him. Counsel undertook on behalf of Vitality that that material would not be
used for the purposes of the underlying action. A formal note recording the precise nature
of that concession has been lodged in process.
[3]
Senior counsel for Mrs Cowie objected to any reference being made in evidence
to the medical records in issue and to opinions being stated on their relevance, and
made various objections to the statement evidence of the principal witness for Vitality,
Mr John Downes. A note setting out the bases of these objections was also lodged in
process. In essence, they related to matters of law on which Mr Downes was said to opine,
to his giving evidence as to standard practice in the insurance industry without being
qualified as an expert witness in that regard, to his evidence about the proper import of
various documents produced by others, and to his reliance on some of the medical records
in issue. I did not consider it expedient to determine these objections on the first day of
the proof, and allowed the evidence in question to be adduced under reservation of the
objections.
3
The evidence
Minuter's case
[4]
The Minuter, Gillian Cowie, relied on her own affidavit dated 2 April 2024, which
was accepted by Joint Minute as representing her evidence for the purposes of this process.
The terms of that affidavit may be summarised as follows:
[5]
Following her husband's death she contacted Vitality and advised it of that fact. It
sent her a letter dated 31 October 2016 advising her that in order to assist it in assessing
the claim made under the insurance policy it required from her: (a) a completed medical
authority certificate; (b) a completed claim form; (c) details of the bank account to which
any payment should be made; (d) a copy of Mr Cowie's finalised death certificate; and
(e) proof of her own identity. The letter went on to state that "A Targeted General
Practitioner's Report will be requested on receipt of the Medical Authority Certificate".
The pro forma medical authority certificate required from her stated that it authorised Vitality
"to obtain details of the Life Assured's medical history from his/her medical practitioner".
She identified Dr Alistair Mclennan of Carolside Medical Centre, Clarkston, Glasgow, as
her late husband's general medical practitioner and signed the authorisation document
as requested. She completed the claim form on 9 November 2016 and sent it to Vitality.
[6]
By letter dated 27 February 2017, a representative of Vitality wrote to her stating
that the information requested in support of the claim had been assessed and that it was
apparent from the information received that Mr Cowie had not fully disclosed his medical
history when he applied for the policy on 12 November 2015. It went on to say that,
based on that medical information, received from Carolside Medical Centre, Vitality's
underwriters had confirmed that had Mr Cowie correctly disclosed his medical history to
4
it, his application for cover would have been declined. The alleged non-disclosure was
described as reckless in terms of the Code of Practice on Non-Disclosure and Treating
Customers Fairly published by the Association of British Insurers, and it was claimed
that the terms of the policy enabled Vitality to cancel it if the assured had made any untrue
statements to Vitality or had failed to disclose any material facts relevant to the policy or to
a claim. The letter went on to state that Vitality had applied the underwriting decision that
would have been applicable if Mr Cowie had correctly disclosed his medical history on his
application, and in consequence had cancelled the policy and declined the claim, with the
premiums paid to be refunded. It finally stated that, due to the confidential nature of the
medical information in question, Vitality was not able to disclose the full details to her,
and suggested that she make an appointment with Dr Mclennan, so that Mr Cowie's
medical history could be explained to her in person. That was said to be in order to ensure
confidentiality and also to prevent any additional stress to her.
[7]
At no point in the letter had Vitality identified the question or questions in its
pre-contract proposal form, or the answer or answers by Mr Cowie, which it considered to
be relevant "qualifying misrepresentations" within the meaning of the Consumer Insurance
(Disclosure and Representations) Act 2012.
[8]
After she had signed and sent off the medical authority certificate to Vitality, she had
had no interaction with Dr Mclennan before she received the letter of rejection of the claim.
After she received that letter she made an appointment with Dr Mclennan to discuss its
contents, and asked for copies of the medical records that had been sent to Vitality. In
her meeting with Dr Mclennan, he had said that he could not disclose information to her
without checking with the Medical Defence Union. Having done so, he had called her back
to confirm that he could let her have a copy of the relevant medical records, and an envelope
5
containing them was left at the practice reception on 15 March 2017, which she duly
collected. At no time had Dr Mclennan shown her any document that he had received
from or on behalf of Vitality in relation to the issue of disclosure of medical records or
information.
Respondent's case
[9]
Alistair James Mclennan (52) adopted a statement dated 2 April 2024 in which
he stated that he had graduated MB ChB in 1995 and had worked as a general medical
practitioner since 2006, latterly at Carolside Medical Practice. Mr Cowie had been registered
to that practice since July 2007. He had died in October 2016 and the death certificate had
stated that the cause of death was an intracerebral haemorrhage, which was a bleed in the
brain. Liver cirrhosis and coagulopathy (a condition in which the blood's ability to form
clots was impaired) were listed as secondary causes. Each of the listed causes of death
was relevant, but the intracerebral haemorrhage was what had actually caused Mr Cowie
to die. The practice did not have any records relating to the intracerebral haemorrhage,
as Mr Cowie had been treated for that by a hospital in England, from which no formal
paperwork had been received. The relevant records the practice held were in relation to
the liver cirrhosis. An inference might be that Mr Cowie had coagulopathy as a result of
his liver cirrhosis.
[10]
He had received a letter from a company acting for Vitality dated 28 November 2016,
which requested all of Mr Cowie's medical records "relating to or contributing to the cause
of death in the 5-year period from 12/11/2010 - 12/11/2015" and enclosed a signed mandate
from Mrs Cowie appearing to authorise their production. He subsequently received two
further letters from that company, on 6 and 19 January 2017 respectively, pressing for the
6
records or for a report. He provided it with the records, though he could not recall the exact
date when that had been done. If he had been asked for a report, then that would have been
written using the medical records. It would have contained the same information, just in a
different format. Although he could not remember what had actually happened when the
letter requesting the records was received, the normal practice would have been that his
secretary would have checked to see if it was an appropriate request, then would have
printed what had been requested and passed it to him for checking and redaction of any
references to third parties. He did not have a copy of what had actually been sent, only a
note that records had been sent out on 19 December 2016 and 23 January 2017. The letter
requesting the records was vague in its reference to conditions relating to or contributing
to death. When someone had liver cirrhosis, consideration had to be given to including any
records relating to alcohol, given the relevancy of alcohol consumption to that condition. He
remained of the view that most of the records which had been provided were relevant to the
causes of death given that they were linked to liver function and cirrhosis, but accepted in
hindsight that certain material, principally relating to back, shoulder and neck pain, perhaps
ought not to have been provided, being irrelevant to the causes of death.
[11]
In a further statement dated 26 April 2024, Dr Mclennan noted that he had by then
been provided with copies of the medical records lodged by Vitality in the action. Having
reviewed them, he had appreciated that they contained entries relating to Mr Cowie which
fell outwith the period set out in the mandate which had been provided to him. He could
not explain why the records outwith the mandate period had been provided, nor could he
think of any obvious administrative error which could have led to them being provided. It
had not been done intentionally. He identified various records which should not have been
7
provided, as falling outwith the identified timeframe, and some further documents which
had been provided but which did not relate to the causes of death.
[12]
In cross-examination, Dr Mclennan stated that responding to the request made of
him in relation to Mr Cowie's information had been a matter of routine at the time. He was
doing his best to carry out what had been asked of him. Contemporaneous documentation
would probably better reflect what had happened than his own memory at this stage.
[13]
Abnormal liver function could be related to cirrhosis, but that had not been
diagnosed in Mr Cowie until September 2016, and could not be said to have been shown
by deranged results from liver function tests carried out in 2014. Mr Cowie had had
subsequent normal results from further such tests, and an ultrasound scan of his liver in
October 2014 showed nothing abnormal. The aetiology of the cirrhosis with which he had
ultimately been diagnosed was never established; it could have been caused by something
other than alcohol consumption, though that was the most common cause in his experience.
He discussed the import of Mr Cowie's death certificate. It was put to him that the phrase
"relating to" could mean something different than "related to", and accepted that if
"relating to" meant "narrating" or "setting out", then none of Mr Cowie's records in the
possession of his practice related to the causes of his death in that sense. He now
appreciated that he might have misunderstood the request made of him. He did not
regard it as a targeted request, but as one asking for the whole practice records relating to
Mr Cowie in the period mentioned.
[14]
He had only recently become aware that records for a wider period than that
requested had been provided. He had not regarded the request as one for a report, but for
records. A report would be a document written by reference to the records, but there could
be a very large difference in the respective contents of a report and the records from which
8
it was derived. He had been sent the mandate signed by Mrs Cowie authorising Vitality's
request to him, which was very inspecific in its terms. He had assumed that it represented a
proper legal basis for the request being made of him. He was not conscious that the request
had asked him to ensure that the mandate covered what he was being asked to provide. He
had not contacted Mrs Cowie about the matter. Had he been sending a report to Vitality, as
opposed to records, he would have offered to show it to Mrs Cowie and would have given
her the opportunity to decide whether it should be sent. He was aware in general terms of
the Access to Medical Reports Act 1988 and the Access to Health Records Act 1990, similarly
of GMC and British Medical Association/Association of British Insurers guidance dealing
with the subjects. He had not thought it necessary to contact the Medical Defence Union at
the time; he did what he thought was the right thing and did not consider legalities in any
depth. He had understood that the purpose of the request was to help Vitality to decide
whether to pay out on the policy.
[15]
In re-examination, Dr Mclennan stated that he had understood the request made of
him on behalf of Vitality was for records within the defined period, whether or not relating
to a cause of Mr Cowie's death. He had no actual recollection of what he had thought at
the time, but was reconstructing now what he would have thought at the time. He had no
explanation as to why records outside the period requested had been sent. That had been
an error. The suggestion that "relating to" might mean "narrating" or "setting out" had not
previously occurred to him. The difference between records and a report might be one of
form rather than substance. If he had been asked for a report, he would have mentioned in
it Mr Cowie's deranged liver test results, but would also have explained the wider context of
the tests.
9
[16]
I observe that it came to light in the course of Dr Mclennan's evidence that his
witness statements had been prepared by solicitors instructed by the Medical Defence
Union. Although he was initially happy to adopt them as his evidence, Dr Mclennan
ultimately departed from some of their content. Most notably, his initial statement asserted
clearly that he had contacted Mrs Cowie before sending any material to Vitality, which
(after an attempt to argue that the statement should not be read as saying what it plainly
did, which was not to his credit), he was constrained to accept was untrue. I shall return to
this matter in due course.
[17]
John Archibald Downes (63) provided a lengthy affidavit dated 2 April 2024, the
essential burden of which was that he was an Associate of the Insurance Institute of South
Africa, held a Master's Degree in Business Administration and was currently employed
by Vitality Corporate Services Limited as Director of Underwriting and Claims Strategy,
accountable for the development and maintenance of underwriting and claims practice and
quality. He had over 30 years' experience in similar roles across insurers and reinsurers in
the UK and abroad. He was not personally involved in the events relating to the handling
of the claim on Mr Cowie's policy until Mrs Cowie challenged the initial declinature. His
first involvement in the case was to review all the relevant papers and business records for
the purposes of speaking to Vitality's actions in relation to the recovery of Mr Cowie's
medical records. He was aware of the terms of the Consumer Insurance (Disclosure and
Representations) Act 2012 ("CIDRA") relating to "qualifying misrepresentations". Vitality's
position was that Mr Cowie had made qualifying misrepresentations in breach of the duty
described in section 2(2) of the 2012 Act and that those qualifying misrepresentations were
deliberate or reckless rather than careless. If Mr Cowie had answered the questions asked of
him in the proposal with reasonable care, and he had not made misrepresentations, Vitality
10
would not have entered into the contract of insurance. When a claim was assessed, it was
imperative that claims assessors considered all the information available in order correctly
to adjudicate the claim. In the context of misrepresentations, this meant that where the
claims assessor identified that there had potentially been a misrepresentation on behalf of
the insured, that needed to be investigated thoroughly. There was a standard industry
practice regarding how qualifying misrepresentations were investigated and how relevant
claims where qualifying misrepresentations had occurred were assessed and adjudicated on.
There were certain industry codes and guidance which codified what was standard industry
practice, and insurers would always have regard to these, in addition to their own internal
claims philosophy.
[18]
The Association of British Insurers ("ABI"), an insurers' trade association of which
Vitality was a member, had published a code of practice on managing claims involving
misrepresentation for individual and group life, critical illness and income protection
insurance. The ABI code for dealing with misrepresentation first appeared around 2008
and offered guidance to insurers as to how to categorise misrepresentation, and its potential
outcomes. Most of the code was now incorporated within CIDRA. The version of the code
in force at the relevant times in relation to Mr Cowie's case was dated April 2013. Section 3
of that version of the ABI code addressed collecting medical information. Section 3.5 stated:
"3.5 Insurers are fully entitled to ask for any medical or other information needed to
properly assess a claim." That was consistent with his understanding of insurance industry
practice generally; in circumstances where medical information was required before an
insurer could make a full and proper assessment of a claim, it was entitled to seek to recover
relevant medical records. Section 3.6 stated:
11
"However, insurers should have a legitimate reason for requesting medical
information at the point of claim and should apply the principles set out in
the joint BMA/ABI guidance, `Medical Information and Insurance', on gathering
medical information at the point of claim."
Section 3.7 stated:
"insurers should only ask for medical information beyond that needed to assess
whether the insured event has occurred, or to case manage a disability claim, to
the extent that the circumstances of the claim reasonably prompt the insurer to
believe that there might have been misrepresentation by the customer."
It was Vitality's position that such circumstances existed in relation to Mr Cowie's case. If a
potential misrepresentation was identified upon a claim being made, then medical evidence
was usually requested to decide whether any potential misrepresentation was material or
not. When the evidence was received, the claims assessor, sometimes with underwriting
assistance, would determine by reference to the ABI code and CIDRA whether any
non-disclosure would have altered the terms on which the policy was accepted, or whether
it would not have been accepted at all.
[19]
The British Medical Association ("BMA") and the ABI had jointly published
guidance regarding medical information and insurance. The joint guidance was published
in March 2010 and it was in force at the relevant times in relation to Mr Cowie's case. The
contents of the second paragraph of section 10 of the joint guidance was particularly
relevant to Mr Cowie's case, and stated:
"Insurance companies request information about deceased people in order to
assess claims. Such requests are known as `duration certificates'. It is preferable
that risks are properly assessed before a company agrees to offer cover. The
contract between insurer and insured person is one of good faith and doctors
should not be asked to provide guarantees against fraudulent claims. It is
recognised, however that the law does in certain circumstances, give people with a
claim arising from the death of an individual statutory rights of access to information
necessary to satisfy the claim. Insurance companies should exercise those rights only
where there are reasonable grounds to believe that relevant information may have
been withheld at the time the policy was taken out. In the case of life insurance, this
may be for example, where the insured person dies, apparently unexpectedly, say
12
within six months of taking out the policy or where an insured person has died
of heart diseases although the application made no mention of the condition".
[20]
Having regard to the ABI Code and the BMI/ABI joint guidance, it was the usual
practice of insurers (including Vitality) to request a targeted general practitioner's report in
circumstances such as pertained in Mr Cowie's case. The ABI had produced a further draft
explanation document regarding the ABI code, but it had never been published, as the
Financial Conduct Authority, in conjunction with which the document had been formulated,
had never finally approved the wording. Nonetheless, the document was an accurate
reflection of what was insurance industry practice at the relevant times in relation to
Mr Cowie's case. In section 2 of that document, the matter of insurers being sent medical
information that went beyond the scope of an insurer's initial request to a doctor was
discussed. It stated:
"Insurers should at all times make reasonable efforts to identify any additional
information obviously going beyond what they asked for and/or what should
properly have been requested. This should be returned, destroyed or kept separate
without using it and a clear record kept of their actions (i.e. what they have done
and why). Where it is not practical to separate such additional information, it should
nonetheless be disregarded and again a clear record kept. However, in the following
exceptional circumstances insurers may use such additional information:
·
Where the insurer would have ultimately asked for the further medical
information on receipt of that originally requested to allow the claim to
proceed more quickly.
·
Where the doctor has sent additional medical information that is relevant
to assessing the claim.
·
Where the additional medical information indicates clear dishonesty to
which the insurer should be free to respond.
·
Where disregarding the information might not wholly be in the interest
of the customer. For example, where the medical information might affect
the validity of a future claim on an income protection policy, or policies
held by the insured that are not the subject of the claim."
[21]
Prior to requesting medical information of an insured, it was Vitality's practice to
request the insured to sign an authority allowing it to contact the relevant medical
practitioner requesting such records. That was in line with industry practice. Where a claim
13
was being made on a life insurance policy, Vitality's practice was to request that the next
of kin sign an authority. Not only was that done in order to ensure that the confidentiality
of the insured was being maintained, but medical practitioners would in his experience not
disclose medical information without such an authority being provided. Medicals Direct
Screening Limited was a third-party provider which was engaged by Vitality in or
around 2012 to request and collect medical records and reports from medical practitioners.
A representative of Vitality would determine how targeted the request should be and relay
written instructions detailing the nature of the information required (eg over what time
period, and in relation to what conditions) to that company. Insurers always sought to
ensure that any request for medical information submitted was objectively justified in
the circumstances of the particular claim. In claims on life insurance policies, that meant
targeting the request to the 5-year period prior to death. As a matter of general industry
practice, insurers did not make requests for medical records and information that were
not targeted. Insurers would not simply request all medical records without giving any
consideration to the question of whether that was justified. The ABI code stated that
insurers should not ask for information that was not relevant and should focus on
information that was connected to the cause of a claim. There was no standard format for
a "targeted GP report", but it would be taken to mean that an insurer should only ask for
information relevant to the claim. Vitality had written to Medicals Direct stating:
"We are assessing a Life Cover claim for Mr Mark Fraser Alexander Cowie
following his death on 25/10/2016. The Death Certificate has confirmed that the
cause of death is: I. (a) Intracerebral Haemorrhage (b) Coagulopathy (c) Liver
Cirrhosis. Kindly furnish us with Mr Cowie's medical records relating to or
contributing to the cause of death in the 5 year period from 12/11/2010 - 12/11/2015.
Please include copies of all consultations, referral letters to other health practitioners,
copies of reports and results of all tests/investigations done; together with
medication prescribed for any condition relating to or contributing to the cause
of death."
14
[22]
Records over the 5-year period between 12 November 2010 and 12 November 2015
were requested as that correlated with the period in relation to which questions had been
asked of Mr Cowie when he applied for cover. For example, he had been asked whether
in the 5 years before applying for cover he had suffered from any condition of the liver.
Medicals Direct would copy the request from Vitality to the relevant medical practitioner.
Where records were not received in a timely manner, Medicals Direct would follow up with
the medical practitioner via phone call or correspondence.
[23]
It was quite common for insurers to be provided with medical records which went
beyond the terms of the initial targeted request to the general practitioner. Most commonly,
general practitioners sent the entire medical records of the customer to the insurer, despite
having been asked only to provide a targeted report or targeted records. In his industry
experience, that had been common for many years. The landscape surrounding data
protection had changed over time, but doctors did still sometimes send entire sets of medical
records. It was also quite common, when asked to provide a targeted GP report, for doctors
to send medical records targeted to the request rather than writing a report or letter that set
out the requested information. He considered that a response from a doctor that provided
targeted records met the definition of a targeted GP report. It was ultimately entirely a
matter for the doctor how to respond to the request, and provided the response addressed
the targeted information sought, insurers were unlikely to take any issue with whether they
were sent a report or a bundle of targeted records. Vitality would not take any issue with
the form of how a doctor chose to respond to a request.
[24]
Insurers would not disregard information that was needed to assess a claim, and
would consider the contents of any such information, even if it was not information that
15
was specifically requested from the doctor. They would look at what had been sent and
take a view on whether it was information needed in order properly to assess the claim. If
it was, they would consider it during their decision-making process regarding the claim. If
it was not, they would disregard the information. The ABI code and the relevant industry
practice, as evidenced in the ABI further draft document, did not prevent insurers from
doing so.
[25]
Vitality's claims philosophy had been drafted by his team with input from reinsurers
and industry bodies such as the ABI. Vitality was audited by its reinsurance partners
against its claims, and underwriting practice and reinsurance pricing was heavily
influenced by it. If the audits found that it was not investigating instances of suspected
misrepresentation, it was highly likely that that would result in higher reinsurance rates
and adversely affect its competitiveness in the market. The version of Vitality's claims
philosophy in force at the relevant times for Mr Cowie's case was dated 31 July 2017. That
philosophy proceeded on the basis that Vitality would adhere to the relevant industry codes
and practices. It stated:
"When considering claims, we should only request medical information about
specific conditions or to a time period appropriate to the medical condition that
is the subject of the claim and where we have reason to believe that there may
have been misrepresentation by the customer. We should document our reasons
for doing so. If the customer's doctor provides us with medical information that
we did not specifically ask for, but where the information confirms that there has
been misrepresentation, the claim will be referred to the Strategic Underwriting
Team in the UK for a retrospective underwriting opinion. If the underwriters
decide that there would have been a different underwriting outcome if the omitted
information had been disclosed at application, then this may be justification for
requesting additional information from the customer's doctor e.g. a full GPR may be
requested. We should ask the customer about the reasons why the information was
not disclosed, before making any judgments about the category of misrepresentation.
Only once we have received the additional information from the customer's doctor
and the customer's response to the `reasons why' letter, can we make any judgment
about the category of the misrepresentation and what (if any) proportionate remedy
should be applied. If, at claim stage, we find that there was misrepresentation where
16
it is appropriate to apply a proportionate remedy, and even if the misrepresentation
does not affect the outcome of the claim, we do not consider that it is good TCF
[i.e. treating customers fairly] practice to disregard the misrepresentation just
because the information we got was in addition to what we specifically requested.
NB: if the misrepresentation (and any proportionate remedy) has no bearing on the
outcome of the claim, then we will not delay payment of the claim whilst we await
the client's response to the `Reasons Why' letter."
[26]
The reference to a "GPR" meant a General Practitioner's Report. It was an acronym
sometimes used within Vitality in place of the phrase "targeted GP report". The philosophy
further stated:
"An insurer is fully entitled to ask for any medical or other information needed to
assess the claim properly, but the insurer should have legitimate reasons for doing
so. An insurer should, therefore, carefully consider whether it can limit its request to
information about specific conditions or to a time period appropriate to the medical
condition it has reason to believe may have existed. The insurer should keep an
audit trail of what it requested and its reasons for doing so."
[27]
That was entirely consistent with the ABI code. Vitality recognised that it had to
have a legitimate reason for requesting medical records; that it should only ask for more
medical information beyond that required to assess whether the insured event had occurred
to the extent that the circumstances of the claim reasonably prompted it to believe that
there might have been misrepresentation by the customer; and that it should not request
excessive evidence. If doctors provided more medical records or information than insurers
initially requested by way of a targeted request, the philosophy took the position that
Vitality should not disregard information that was needed to assess the claim, and should
consider the content of any such information, even if it was not information specifically
requested. That was consistent with industry practice.
[28]
In 2015 Mr Cowie entered a life insurance policy with Vitality. It had received
the application for the policy through a financial advisor appointed by Mr Cowie. The
application included Mr Cowie's responses to a number of questions relating to his health.
17
The decision to offer cover was made based on Mr Cowie's application and his responses
to those questions. Mr Cowie answered "no" to all the medical or health questions except
for the question asking whether he had undergone any investigations in the last 2 years;
he answered "yes" to that and "yes" to the follow-up question asking whether this was part
of a routine "well person" check, and "yes" to the further question asking "was the result
normal?". As a result, the application was dealt with by "Straight Through Processing",
meaning it was underwritten by an automated rules engine rather than a human
underwriter.
[29]
According to his death certificate, Mr Cowie died on 25 October 2016. Mrs Cowie
had called Vitality on 28 October 2016 to advise it that he had passed away. Vitality wrote
to Mrs Cowie on 31 October 2016 requesting further information to process the claim. The
letter enclosed a blank claim form and a blank "Medical Authority Certificate" or mandate
for Mrs Cowie to complete and return. The letter requested documentation, including a
copy of Mr Cowie's death certificate, and stated, amongst other things, that "A Targeted
General Practitioner's report will be requested on receipt of the Medical Authority
Certificate". Mrs Cowie wrote to Vitality on 10 November 2016 enclosing the requested
documentation, including the death certificate, and the completed form and mandate. The
operative part of the mandate stated: "I/we, the executor(s) / next of kin / trustees, authorise
VitalityLife to obtain details of the Life Assured's medical history from his/her medical
practitioner". The death certificate narrated under "Cause of death": "1 (a) Intracerebral
haemorrhage (b) Coagulopathy (c) Liver cirrhosis". Mr Cowie had liver cirrhosis, which
caused coagulopathy, which in turn caused him to develop an intracerebral haemorrhage,
from which he died. When considering the cause of Mr Cowie's death, it was necessary to
consider liver cirrhosis, as this caused the conditions from which he ultimately died. The
18
claims assessor would have been alerted by the fact that liver cirrhosis was listed as a cause
of death. That was a condition which was known to develop over a period of time due to a
number of known risk factors, such as alcohol misuse or hepatitis. Given that the condition
had not been disclosed by Mr Cowie on his application, it needed to be investigated and the
claims assessor would have engaged Medicals Direct to write to Dr Mclennan in the terms
instructed, which it did on 28 November. That was a targeted request. It was, in substance,
a request for a targeted report from Dr Mclennan. It was requesting medical records and
information falling within a targeted time period in relation to the cause of death narrated
in the death certificate and reproduced in the letter. It was not a request for Mr Cowie's
full medical records from birth nor was it a request for all medical records held by
Dr Mclennan's practice whether relevant to the causes of death narrated in the death
certificate or not.
[30]
In this context, Vitality would use the terms "medical records" and "medical report"
interchangeably. They were both targeted requests, and a response to the request by a
medical practitioner, irrespective of the terminology used, would render the same result.
Materially the same information would have been provided either way to Vitality. It was
necessary and proper practice for the targeted records to be requested from Dr Mclennan
because liver cirrhosis was a condition that developed over an extended period of time due
to known risk factors, none of which was disclosed by Mr Cowie on his application form
which had been submitted less than 12 months prior to his death. In such circumstances,
targeted records would be requested in order to determine whether there had been a
potential misrepresentation by the insured, and if so, to collect medical information in order
to re-underwrite the policy in accordance with Vitality's underwriting guidelines with the
benefit of the additional medical information. Dr Mclennan responded to the request on
19
23 January 2017 by producing medical records to Medicals Direct. That was not unusual. It
was not immediately obvious that what he had sent exceeded the terms of the request. He
was a medical practitioner and had direct professional knowledge of Mr Cowie's medical
history. He was best placed to assess what required to be produced in response to the
request. There might be a range of conditions that contributed to a cause of death, and it
was for the doctor to determine that when responding. A claims assessor conducted an
initial review of Mr Cowie's medical records and determined that the case be referred to
Vitality's retrospective underwriting team for review and opinion. That decision had been
made due to Mr Cowie not disclosing oesophageal issues or abnormal liver function test
results at the point of application. The medical records appeared to show that Mr Cowie
was aware of those issues and failed properly to disclose them on the application. In
particular, liver cirrhosis would have raised a claims assessor's concerns, as this was a
condition that generally developed over a relatively prolonged period of time. With a
history of deranged liver function and references to alcohol consumption also present,
the assessor would immediately have been alerted that there was a strong possibility of
misrepresentation. The medical records contained information that was relevant to
assessing the claim on Mr Cowie's policy. They revealed deranged liver function tests
and a diagnosis of liver cirrhosis. They revealed that elevated liver function tests had led
to the postponement of surgery. Mr Downes asserted that all of that fell within the targeted
5-year period, and related to one of the causes of death noted in the death certificate. There
was no conceivable scenario, short of Dr Mclennan declining to produce any targeted
medical records or report whatsoever, in which Vitality would not have investigated further
to the point of recovering the records relating to liver function. Those records were directly
relevant to assessing the claim.
20
[31]
In response to a further examination which might aptly be described as cross,
Mr Downes accepted that the death certificate was sufficient to establish the event insured
against, namely Mr Cowie's death, and that the ABI guidelines required an insurer to have
a belief that there might have been misrepresentation before seeking further information.
The death certificate had, however, suggested that there might have been misrepresentation.
Mrs Cowie had been asked to give a mandate for recovery of medical information pertaining
to her husband in advance of Vitality having seen the death certificate in case the certificate
raised any issues that might require investigation. That was standard practice, to avoid
returning later to ask for more paperwork from someone who might be expected to be
grieving for the loss of a loved one.
[32]
The timing of Mr Cowie's death, ie the length of time between the inception of the
policy and the death, meant that Mrs Cowie's claim was treated by Vitality as an "early"
one. An early claim would be in respect of a death within a year or two of policy inception,
or up to 5 years if the cause of death appeared to be a condition which would typically be
long-standing in nature. There were no fixed criteria for the treatment of a claim as an
early one. Some circumstances were red flags for claims assessors. In Mr Cowie's case, his
death had occurred within a year of policy inception, which meant that there was a high
possibility of an undisclosed medical condition having been present.
[33]
The mandate granted by Mrs Cowie authorised Vitality to obtain details of her
husband's medical history from his medical practitioner. She had been told that that
mandate would be used to obtain a targeted medical report from his general practitioner.
There was no definition of a targeted general practitioner report. The request made to
Dr Mclennan had been for medical records relating to or contributing to the causes of
Mr Cowie's death. That was a targeted request; there was no substantial difference between
21
a report and records. Vitality would have ended up with the same information either way.
Mrs Cowie should have appreciated that Vitality would be asking for records relating to the
causes of death.
[34]
He was aware in general terms of different legislation relating to access to medical
records and access to medical reports, but not of the detail of the legislation. The request
had not specifically been made in terms of any particular legislation. It had been for a
targeted report, even if it said records. Vitality had asked for a report and had got more
information than it asked for. That was not surprising; it happened quite often. Generally,
information not specific to the claim was disregarded. Vitality was looking for information
that related to the causes of death. It did not fish for more. It was up to Dr Mclennan to
decide how to report back. He had provided more than he was asked for. Mrs Cowie
had not been provided by Vitality with a copy of the request sent to Dr Mclennan. Such
provision of the request was not standard practice, again to avoid disturbing the bereaved
more than necessary. Vitality had a reasonable suspicion of misrepresentation and was
looking to see if it could substantiate it, or to verify the claim. Mrs Cowie had not been
told that. The purpose of the enquiry had not been spelled out to Dr Mclennan either.
Mr Downes did not know what would have happened had Mrs Cowie refused permission
for recovery of medical information.
[35]
The causes of Mr Cowie's death were relevant to the decision to decline the claim.
The medical history indicated the existence of an issue known to him which was linked to
those causes. Had Vitality been informed of the 2014 deranged liver function test results
when the insurance was applied for, it would have refused to take the risk. The ABI code
and Vitality's own claims philosophy did not require that all information provided in excess
of a specific request had to be disregarded. It would be disregarded if it was not relevant to
22
the cause of death or to the validity of the claim. It had first to be looked at in order to
determine whether it was so relevant. Vitality fully accepted that medical records were
confidential. The causes of Mr Cowie's death had led it to investigate, and the investigation
had led to the discovery of an issue of non-disclosure. He was not aware of any decision
of the Financial Services Ombudsman in a case called L v Liverpool Victoria; it had not been
brought to his attention. There was a general duty on insurers to act fairly, but it appeared
that the circumstances of that case were quite different from those of this case. The ABI code
was subject to interpretation.
[36]
Vitality assumed that Dr Mclennan had sent it information relevant to the claim.
He had provided material outwith the requested date range, but Vitality had not reverted to
him. Irrelevant information had not been kept separate from what was relevant, but what
was irrelevant had been disregarded. There was no separate department in the company
which assessed relevancy before passing only relevant information to claims assessors.
The assessment of a claim involved the possibility of declining it for non-disclosure, but
decisions were not made on the basis of irrelevant information that had not been asked for.
[37]
In re-examination, Mr Downes stated that Mrs Cowie's claim had been investigated
because of the relatively short time that had passed between the inception of the policy and
Mr Cowie's death. She had been asked for a medical mandate as it was an early claim.
She had been told that the claim would be assessed, and that involved looking at possible
non-disclosure. When the death certificate was received, the mention of cirrhosis suggested
the presence of a long-term condition, and that there might, therefore, have been a
non-disclosure. That possibility was bolstered when it was seen that the records referred to
deranged liver function test results. The distinction between medical reports and medical
records had become cloudy. The format in which information was supplied made no
23
difference to Vitality. Only records relevant to the causes of Mr Cowie's death had been
requested.
Minuter's submissions
[38]
On behalf of Mrs Cowie, senior counsel submitted that the evidence before the court
established, amongst other things, that as a condition for assessing her claim to payment
under Mr Cowie's policy, Vitality required her to sign a "Medical Authority Certificate
Form". It was at that stage aware only that Mr Cowie had died from a brain haemorrhage,
and required the form to be signed because his death had occurred within a year or so of his
taking out the policy. That involved an element of pre-assessment of the claim on its part.
Its purpose in getting her signature to the form was to enable it to access the medical records
of Mr Cowie to see if it could find evidence that he had, in taking out the life insurance
policy, made a misrepresentation in breach of his duty as set out in section 2(2) of the
Consumer Insurance (Disclosure) Act 2012. It did not advise Mrs Cowie that that was why
she was being asked to sign the form, informing her only that on receipt of the signed form
a targeted general practitioner's report would be requested. The operative wording of the
Medical Authority Certificate Form was as follows: "I/we the executors/next of kin/Trustees
authorise VitalityLife to obtain details of the Life Assured's medical history from his/he
General Practitioner who is ...". Vitality sent a copy of the signed Medical Authority
Certificate Form to Dr Mclennan and stated in the covering letter: "We enclose a copy of
the Medical Certificate Authority form authorising VitalityLife to obtain details of the Life
Assured's medical history", but did not advise him what had been said to Mrs Cowie about
the use to which the form would be put. Vitality did not request a targeted general
24
practitioner's report from Dr Mclennan, but instead made a request to him to supply it with
Mr Cowie's medical records, in the following terms:
"Kindly furnish us with Mr Cowie's medical records relating to or contributing
to the cause of death in the 5 year period from 12/11/2010 - 12/11/2015. Please
include copies of all consultations, referral letters to other health practitioners,
copies of reports and results of all tests/investigations done; together with
medication prescribed for any condition relating to or contributing to the cause
of death."
Mrs Cowie was not informed about the terms of that request by Vitality. Vitality intended
to mislead Dr Mclennan by not telling him that it had told Mrs Cowie that a report, not
records, would be asked for. Dr Mclennan did not apply his mind to the question of
whether or not the medical records which he was sending to the insurers could be said to
be only those records "relating to or contributing to the cause of death in the 5 year period
from 12/11/2010 - 12/11/2015". He did not select or redact the medical records which he
sent to Vitality with a view to ensuring that it was supplied by him only with those records
which were called for. Instead, he responded to its request for Mr Cowie's medical records
by sending the complete medical records held by the practice on Mr Cowie, which dated
from around 2010 until the date of his death. From the fact that the records sent to Vitality
included entries which post-dated 12 November 2015, it would have been immediately
obvious to it that he had included records which went beyond what had been requested
of him. Vitality made no effort to identify any additional information included by
Dr Mclennan obviously going beyond what had or ought to have been asked for. It did not
return, destroy, or keep separate without using, any such material. Rather, it read through
the complete medical records as sent to it and had regard to all the information contained
therein with a view to identifying information it could use to found a claim that Mr Cowie
had, in taking out the life insurance policy, made a misrepresentation in breach of his duty
25
under the 2012 Act. None of the material which it founded upon refusing the claim bore a
causal relationship to any of the conditions which were certified in the death certificate as
the immediate and underlying causes of death.
[39]
Against that factual background, it was submitted that Mrs Cowie did not consent
to Vitality seeking or obtaining Mr Cowie's medical records. It misled Dr Mclennan in
representing to him that she had consented to it seeking or obtaining his medical records.
It obtained those medical records in breach of the requirements of confidentiality at common
law as that applied to those records. The manner in which it obtained Mr Cowie's medical
records was not done "in accordance with the law" for the purposes of compliance with the
requirements of Article 8 of the European Convention on Human Rights.
[40]
The common law provided that medical records could be recovered for use in court
actions only with the specific sanction of the court. In Boyle v Glasgow Royal Infirmary, 1969
SC 72, 1969 SLT 137 Lord Cameron had observed (at 1969 SC 82, 84, 1969 SLT 145, 146):
"The records of a patient's condition and treatment are not kept for the purpose
of being made available to the patient on call, but so that a full and complete
record of that patient's condition, treatment and response or reaction to treatment
may be kept. They may be valuable as an adjunct to research and the advancement
of medical science, they may be valuable for further treatment of the patient in other
or recurrent circumstances, and it is obvious that those who make or keep them must
be wholly free to state fully and frankly what they have to note, express or record.
The fact that such specifications as this require by our practice to be served on the
Lord Advocate as guardian of the public interest is indicative that these records are
not subject to random inspection or recovery at, it may be, the wish of a patient ...
[Counsel for the pursuers] was not seeking particular information or a particular
document to enable him to complete the specification of his pleadings, but a wide
collection of documents of all kinds relative to the second pursuer's treatment in
hospital in order that he might search through them to see if he could find something
which he could add to his pleadings, some matter of which he is at present unaware
and the nature of which he cannot define. ... If this diligence were allowed, I think
it would be difficult to see how in any case in which an action was raised against
hospital authorities for alleged negligent treatment, whether medical or nursing, of
a patient under their care, a diligence to recover the whole record of that patient's
treatment could be refused at the stage of an open record. I would sustain the
reclaiming motion and refuse the diligence sought in hoc statu."
26
[41]
The provisions of the UK GDPR did not apply to the issue of the confidentiality of
the personal data contained in medical records of those who were deceased. The rules
concerning the lawful processing of personal data about deceased persons were found in
the case law on common law duties of confidentiality, as well as in a variety of statutes and
statutory guidance, such as the Freedom of Information (Scotland) Act 2002. The rights of
next of kin to access a deceased person's medical records were provided for in sections 3(1)(f)
and 4(3) of the Access to Health Records Act 1990. The Information Commissioner's Office
had published guidance on dealing with information about deceased persons in 2013. The
General Medical Council had also published guidance on confidentiality and good practice
in handling patient information, noting that the duty of confidentiality continued after a
patient had died.
[42]
The decision of the House of Lords in Lord Advocate v Scotsman Publications Ltd 1989
SC (HL) 122, 1985 SLT 705 made it plain that Scots and English law did not differ as regards
the common law of confidentiality. Equity had always been part of the common law of
Scotland. Even if the formal conceptual legal basis of protection of confidential information
might not be the same in both jurisdictions, the practical result was the same. In BC v Chief
Clerk Dorrian observed at [83]:
"The existence in Scotland of an obligation of confidence has long been recognised,
and here too the need for a confidential relationship has given way to a focus on
the knowledge of those possessing the information that it had been imparted in
confidence ... I see no reason to think that the effect of Arts 8 and 10 ECHR in
respect of this area of the law in Scotland is any different to that in England ...".
Reference was also made to Bluck v Information Commissioner and Epsom and St Helier
27
at [145].
[43]
Those statements of English law fell now to be considered in the context of the
European Convention on Human Rights, Article 8 of which read as follows:
"1. Everyone has the right to respect for his private and family life, his home
and his correspondence.
2.
There shall be no interference by a public authority with the exercise of this
right except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic wellbeing
of the country, for the prevention of disorder or crime, for the protection of health
or morals, or for the protection of the rights and freedoms of others."
[44]
Vitality did not dispute, but chose to ignore, that the medical records at issue were
documents which were protected under and in terms of Article 8, meaning that the court
was obliged in terms of section 6(1) of the Human Rights Act 1998 to exercise its powers in
relation to the records only in a manner which was Article 8 ECHR compatible. The court
should bear in mind that ECHR rights did not form a wholly separate stream in law, but in
truth soaked through and permeated the areas of domestic law in which they applied - see
Lord Justice General Rodger in HMA v Montgomery 2000 JC at 117A - B, 2000 SLT 117
at 127A.
[45]
The position under the ECHR in relation to continuing duties of confidentiality
under Article 8 as owed to the surviving family of a deceased individual was set out in
Éditions Plon v France (2006) 42 EHRR 3610, which made it clear that the obligation of
confidentiality imposed by Article 8 ECHR survived the death of the patient. Because
the medical records of Mr Cowie fell within the ambit of the protections of Article 8, any
disclosure or use of these records in court had to be shown by Vitality to be (i) in accordance
with law and separately (ii) justified in all the circumstances of this case under and in terms
of Article 8(2). The recent Convention case law on the issue of the confidentiality of medical
28
records and reports under Article 8 was usefully summarised in Frāncu v Romania [2020]
ECtHR 69356/13 (Fourth Section, 13 October 2020), where the ECtHR had observed (in an
unofficial translation from the original French):
"51. The Court recalls that medical data fall within the scope of the patient's right
to respect for the patient's private and family life, guaranteed by Article 8 ECHR:
Mockut v Lithuania [2018] ECtHR 66490/09 (Fourth Section, 27 February 2018)
at [93]; I v Finland (2009) 48 EHRR 31 at [35]; LL v France (2010) 50 EHRR 32 at [32].
52. In this respect, it also recalls that respect for the confidentiality of health-related
information is an essential principle of the legal systems of all the Contracting Parties
to the Convention. Respecting this principle is vital not only to protect the privacy of
patients, but also to preserve their trust and confidence in the medical profession and
50 EHRR 32 at [44]. The domestic legislation must therefore provide appropriate
safeguards to prevent any communication or disclosure of personal data relating
to health which does not comply with the guarantees under Article 8 ECHR: Z v
(Fourth Section, 27 February 2018) at [93].
53. Any measure taken by a State to compel the communication or disclose such
information without the consent of the person concerned calls for the most rigorous
scrutiny on the part of the Court, which must assess with equal care the safeguards
designed to ensure effective protection: see, mutatis mutandis, in relation to
54. The Court accepts that the protection of the confidentiality of medical
information - which is in the interests of both the patient and the community as a
whole - can in some cases give way to the need to investigate and prosecute criminal
offences and to protect the public nature of legal proceedings, when the latter
at [97].
55. However, it may be appropriate to limit the interference that inevitably
results as far as possible to that made strictly necessary by the specific features
of the proceedings and the facts of the litigation: LL v France (2010) 50 EHRR 32
at [45] and the case law there noted."
[46]
If the medical records in the present case could not be shown by Vitality to have
been obtained by it "in accordance with law", then any proposed use of those records by
it before this court would be Convention incompatible and, as such, could not be permitted
by the court in accordance with its duties under section 6 of the 1998 Act. Thus, in MK v
Ukraine [2022] ECtHR 24867/13 (Fifth Section, 15 September 2022) the Strasbourg court
held that where there had been a failure by the respondent to comply with a national
29
requirement to keep a written record of alleged consent to disclosure of medical
information, then the inference could properly be drawn that the lack of written record
for consent meant that no consent was in fact given. On that basis the court held that the
disclosure of the relevant confidential medical information complained of was necessarily
in breach of Article 8 because it could not be justified as being an interference done "in
accordance with law". The court observed that:
"36. Any interference with an individual's Article 8 rights can only be justified
under Article 8(2) if it is in accordance with the law, pursues one or more of the
legitimate aims to which that paragraph refers and is necessary in a democratic
society in order to achieve any such aim ...
37. The wording `in accordance with the law' requires the impugned measure
both to have some basis in domestic law and to be compatible with the rule of law,
which is expressly mentioned in the Preamble to the Convention and inherent in
the object and purpose of Article 8 ECHR. The law must thus be adequately
accessible and foreseeable, that is, formulated with sufficient precision to enable
the individual if need be with appropriate advice to regulate his or her conduct.
The foreseeability requirement also means giving individuals an adequate indication
as to the circumstances in which and the conditions on which the authorities are
entitled to resort to measures affecting their rights under the Convention ,,,
39. By virtue of the domestic law the applicant was entitled to be informed of
the results of her HIV test (see Section 7 of HIV act, cited in paragraph 24 above).
There is no dispute between the parties on that issue. The parties disputed,
however, on whether this provision had been complied with by the hospital:
while the Government, relying on the conclusions of the domestic courts, alleged
that the applicant had been informed of her diagnosis by the hospital staff, the
applicant denied being informed of the results of her HIV-test.
40. While it is not the Court's task to substitute its own assessment of the facts
for that of the domestic courts, the Court cannot but note that according to the
HIV Act, an HIV-positive person should attest in writing of having received
information about the positive results of his or her HIV tests and recommendations
as to further treatment (see Section 12 of HIV act, cited in paragraph 24 above). No
such written evidence had been relied on by the domestic courts and the applicant's
arguments in this respect remained unanswered ...
41. In these circumstances, the Court cannot adhere to the domestic court's
findings and concludes that there has been an interference with the applicant's right
to respect for her private life on account of the hospital's failure to duly inform the
applicant of the results of her HIV testing. For the reasons mentioned above, it
further finds that the interference was not `in accordance with the law' within the
meaning of Article 8 § 2 of the Convention ...
50. In view of the foregoing, the Court finds that the release by the hospital of
information about the applicant's health to her mother, whether in the form of
30
`informing' or `confirming', did not have a Convention-compliant legal basis and
was, therefore, not `in accordance with the law' within the meaning of Article 8 (2)
of the Convention. Accordingly, the Court is not required to determine whether the
disclosure pursued a legitimate aim and, if so, whether it was proportionate to the
aim pursued."
[47]
The medical records in the present case had been obtained without Mrs Cowie's
informed consent; a misrepresentation about what she had consented to had been made to
Dr Mclennan, and his position was that in retrospect he accepted that he had over-disclosed.
That being the case, the medical records were not recovered in accordance with the law.
Even if the medical records had been recovered in accordance with law, Vitality's proposed
use and reliance on them before the court could not be permitted unless it established that
such reliance was, in all the circumstances, justified. The Court had to ascertain, having
regard to all the circumstances of the case, whether the reasons adduced to justify what was
proposed were relevant and sufficient, and whether the interference was proportionate to
the aim pursued: Z v Finland at [94]. Thus, in LL v France the ECtHR ruled that the decision
of the French domestic courts to allow a divorcing wife to lodge and rely upon medical
records and reports relating to her husband in support of her divorce and custody case
was contrary to the husband's Article 8 rights to confidentiality. The court noted:
"46. ... In reality, it was only on an alternative and secondary basis that the
domestic courts used the disputed medical document in justifying their decisions,
and it thus appears that they could have declared it inadmissible and still reached
the same conclusion. In other words, the impugned interference with the applicant's
right to respect for his private life, in view of the fundamental importance of the
protection of personal data, was not proportionate to the aim pursued and was
therefore not, `necessary in a democratic society for the protection of the rights
and freedoms of others'.
47
Lastly, as the Court has already observed, the domestic law does not afford
specific guarantees in respect of the use of data relating to the private life of
parties to proceedings of this kind, except for those guarantees referred to by
the Government, and this a fortiori justifies strict scrutiny of the necessity of such
measures within the meaning of art.8(2) of the Convention."
31
[48]
The decision of the ECtHR in I v Finland (2009) 48 EHRR 31 underlined that this court
was required to ensure the provision of effective remedies against unauthorised access to
medical records in breach of the duties of confidentiality, and that simply allowing for the
possibility of claiming damages in respect of losses attributable to such unauthorised access
did not constitute for those purposes an effective remedy. The court noted:
"46. .. [T]he applicant's argument that her medical data were not adequately
secured against unauthorised access at the material time must be upheld.
47. The Court notes that the mere fact that the domestic legislation provided
the applicant with an opportunity to claim compensation for damages caused by
an alleged unlawful disclosure of personal data was not sufficient to protect her
private life. What is required in this connection is practical and effective protection
to exclude any possibility of unauthorised access occurring in the first place. Such
protection was not given here."
[49]
In summary, the court had a Convention duty to ensure effective protection of
the confidentiality of medical data as contained in medical records or reports. That duty
extended to the prevention of any communication or disclosure of personal data relating
to health which did not comply with the guarantees under Article 8. That Article required
that, in principle, the court should not allow the disclosure or use of medical information
contained in medical records or reports without the consent of the person to whom the
duties of confidentiality were owed. Reliance or reference for a specific purpose in court to
confidential medical information by the party to whom duties of confidentiality were owed
was not to be taken as, of itself, waiver of confidentiality in otherwise confidential medical
records or reports. In any event, where medical information had been obtained and
disclosed to or used by a third party in the absence of a court order and without the consent
otherwise required under national law that would, in and of itself, constitute a breach of
Article 8 since the interference with the Convention right to privacy which covered medical
records and reports would not have been done in accordance with law.
32
[50]
Further, any order by the court for the disclosure, recovery or use of confidential
medical data, in the absence of consent, would constitute an interference with the Article 8
rights, although it might be open to a court to make a disclosure (or permitted use) order
of confidential medical information without, or in the absence of, the consent otherwise
required under the Convention, where such an order could be shown to be justified in
Convention terms (which is to say that the order was based on relevant and sufficient
grounds and was proportionate to the recognised legitimate aim pursued). The court
should apply any proportionality test in the structured way described by Lord Reed in
serially whether the objective of any interference with an Article 8 right was of sufficient
importance to justify that limitation, whether the interference was rationally connected
to that objective, whether a less intrusive means could be used without unacceptably
compromising the achievement of the objective, and whether, balancing the severity of the
impact of the interference with the importance of the objective and the extent to which the
interference would contribute to its achievement, the former outweighed the latter. In
particular, commission and diligence provided a less intrusive means of interference in the
circumstances of the present case.
[51]
The presumption, however, was against justification for an order in that it was
only where, after the most rigorous scrutiny on the part of the court, competing relevant
legitimate interests in favour of disclosure were shown clearly to outweigh the maintenance
of medical confidentiality that such an order could be made. No such order could lawfully
be made unless it could be shown to be strictly necessary in the circumstances of the case. It
was not conceded that the records in the present case were of any relevance to the issues in
the underlying action.
33
[52]
Those considerations in effect informed the procedure followed by the Scottish
courts in considering whether to grant commission and diligence for the production of
medical records sought under a specification of documents. That was the way in which the
records could have been recovered "in accordance with law" but was not the procedure by
which Vitality obtained them. Indeed, three attempts by it to obtain the medical records by
means of a specification procedure were all unsuccessful. That was something that fell to be
placed in the balance when considering where the equities of the situation lay. Mr Cowie's
medical records had not been "recovered"; they had been obtained improperly, and
consequently in a manner which was not "in accordance with law". It would be inconsistent
with the requirements of Article 8, and indeed arbitrary, for any order from the court
allowing use of the records to be granted with retrospective effect. It would run wholly
contrary to the Convention principles of legality and the rule of law for a domestic court
simply to declare that that which was not initially lawful was now lawful. That would be
clear evidence of arbitrariness, and as such a Convention incompatible action because any
such decision of the court could not be said to be adequately accessible and foreseeable
such as to conform to the Convention requirement of being in accordance with law.
[53]
Vitality's position was that the use and intended use of Mr Cowie's medical records
was lawful because Mrs Cowie had provided consent for that by her signature of the
mandate, or that it would have recovered the records in any event, and that it was entitled to
consider the records produced to the extent that they were relevant in assessing Mrs Cowie's
claim. However, there had been no informed consent for the reasons already canvassed,
and Dr Mclennan was very clear that a report and the provision of records were not in
substance the same. His evidence was that a report would have involved his reviewing
and referring only to those records relevant to the particular questions asked of him by the
34
insurer. A report would have contained a narrative and contextualisation of any reference
to the records. Any such report would have been shown by him in draft to Mrs Cowie to
obtain her confirmation as to the accuracy of its contents and her consent to it being sent to
the insurers.
[54]
The law made a clear differentiation between a right of access to others' health
records (which was governed by the provisions of the Access to Health Records Act 1990)
and a right of access to medical reports commissioned by or requested by insurers
(which was governed by the Access to Medical Reports Act 1988). The fact of insurers
systematically having adopted a practice of seeking to obtain access to medical records
without informed consent undoubtedly informed the BMA Focus on Subject Access
Requests for Insurance Purposes guidance. Although that guidance specifically concerned
insurers' abuse of the procedure provided for under the Data Protection Act 1998 and now
GDPR, it set out clear concerns about the strategies being used by insurance companies to
get access to individuals' medical records without ensuring their informed consent to such
access.
[55]
Mrs Cowie's claim was in terms of a contract concluded between her husband and
Vitality. That contract was a consumer insurance contract to which the provisions of the
Consumer Insurance (Disclosure and Representations) Act 2012 applied. Separately, the
"unfair terms" provisions of Part 2 of the Consumer Rights Act 2015 were also applicable in
this case. In particular, section 69(1) of the 2015 Act stipulated that: "if a term in a consumer
contract, or a consumer notice, could have different meanings, the meaning that is most
favourable to the consumer is to prevail". That applied to the interpretation and application
both of the terms of this consumer insurance contract and also to any notice (including an
announcement, whether or not in writing, and any other communication or purported
35
communication) which it was reasonable to assume was intended to be seen or heard by
a consumer, to the extent that it related to rights or obligations as between Vitality and
Mr Cowie (and through him Mrs Cowie), and in the present case would apply to the
interpretation of the proposal form which formed the basis for the contract, all the terms
of the contract itself, Vitality's letter to Mrs Cowie enclosing the blank medical mandate,
the mandate itself and the letter from Vitality to Dr Mclennan dated 28 November 2016.
[56]
Dr Mclennan had accepted that, if the request for medical records made to him were
to be read as asking only for records which "related to" the causes of death in the sense of
specifically narrating the causes of death, there would have been no records falling within
that description. The request to Dr Mclennan had asked him to ensure that the consent form
signed by Mrs Cowie allowed Vitality to access the records in question. It was reasonable to
assume that that letter was intended to be shown to Mrs Cowie by Dr Mclennan, or at least
referred to by him in communication with her. In requesting access to medical records,
that letter related to rights or obligations as between a trader (Vitality) and a consumer
(Mrs Cowie). The nexus between those two parties had been established by the consumer
life insurance contract which entitled her to be paid out on the policy in the event of the
death of her husband. The avowed purpose of Vitality in sending that letter was to obtain
Mr Cowie's medical records to allow it to trawl through them to find a reason to claim that
there had been a relevant misrepresentation when the contract was entered into. It was
seeking thereby to avoid liability for payment under the contract to Mrs Cowie.
Dr Mclennan's witness statements, drafted and worded by his lawyers, sought to argue that
he would in any event have given Vitality information from the medical records concerning
Mr Cowie having
36
"a long history of disorders of the digestive system with investigations and
treatment; abnormal liver function tests; postponement of neck surgery
following abnormal liver function tests on two occasions; Barrett's oesophagitis",
but in cross-examination Dr Mclennan admitted that none of these matters was in fact
causally related to the death of the deceased, and that they were thus not relevant to the
causes of death. In sum, applying the medical test of relevancy which would have been
applied by Dr Mclennan had he been commissioned to produce a medical report on entries
in Mr Cowie's medical records between November 2010 and November 2015 relating to or
contributing to the certified causes of death, none of the matters upon which Vitality relied
in its letter of 27 February 2017 would have been mentioned in such a report. It would
therefore have had no basis upon which to seek any further information or apply to recover
the medical records to trawl through in order to look for other entries which it might
consider to be relevant from its perspective (seeking to repudiate the insurance policy),
but which were not medically relevant. If a targeted medical report had been requested,
Dr Mclennan's evidence was that he would have reverted to Mrs Cowie with the terms
of any draft report and given her the opportunity to comment on it and, having seen it, to
withdraw her consent to its provision to Vitality.
[57]
In fact, the request to Dr Mclennan was for medical records. No questions were put
to him such as might have been expected if a medical report had been sought. The request
was not copied to Mrs Cowie, so she was unaware of its terms, or that Vitality was now
seeking medical records and not a medical report. Requests for access to medical records
were governed by the Access to Health Records Act 1990. That certainly gave the next of
kin of a deceased person an unrestricted right to be provided with the deceased's medical
records. Whether an insurance company was given any similar rights under the 1990 Act
was questionable. But in any event Vitality did not in this case seek to pray in aid the
37
terms of the 1990 Act. Instead, it provided Dr Mclennan with a consent form which was
misleading in that its apparently broad wording concealed the fact that consent had been
sought only for a targeted medical report. The reality of the situation was that Vitality had
no consent from Mrs Cowie to approach Dr Mclennan to give it any medical records on her
husband.
[58]
The decision of the Financial Services Ombudsman in relation to a complaint against
Liverpool Victoria (PB 131/898) reinforced that it was not fair and reasonable for an insurer to
read through and examine the complainer's entire medical records mistakenly given to it by
her general practitioner and then base its decision to decline her claim and cancel her policy
on the basis of the information it had discovered there, and that the ABI Code of Practice
and the joint BMA/ABI Guidelines on Medical Information and Insurance were very clear
that medical practitioners should only provide relevant information, that it was ethically
unacceptable for them to provide extraneous information, and that insurers should have a
legitimate reason for requesting information at the point of claim.
[59]
A particular feature of this case was that Dr Mclennan in fact sent to Vitality all the
medical records he had on Mr Cowie dating from at least 2010 until the date of his death,
and that despite that fact three separate attempts had been made to recover by way of court
order the same records. All had been unsuccessful because Vitality failed to satisfy the tests
applied by the court in considering any application for recovery of documents - tests which
ensured proper and proportionate respect for the confidentiality of documents such as
medical records.
[60]
The evidence of Mr Downes that doctors routinely sent to insurers more medical
records than had been asked for or to which they might conceivably be entitled, and that
in such cases Vitality had regard to and relied on the information it found there for its own
38
purposes, was describing a systemic continued breach of confidence from which insurers
sought to take commercial advantage. He admitted that Vitality had done nothing to
prevent that from continuing to happen and that it had no system in force to ensure that
confidentiality obligations were maintained when a doctor mistakenly sent all the records.
He accepted that it would be possible for internal practices to be set up in order to check for
inadvertent breaches of confidentiality before passing recovered records on for assessment
by the claims department.
[61]
Vitality had acquired Mr Cowie's medical records unlawfully. It had misunderstood
It was clear at [77] - [78] of that case that "fairness" required consideration of whether
consent had been given to the provision of DNA samples. The unequivocal finding of the
court was that such consent had indeed been given (ie the DNA was a sample obtained in
accordance with law). The only question before the court was, that DNA evidence having
been lawfully obtained and consented to, did that consent extend to its use for a closely
related purpose? In the present case, there never was any proper consent for Vitality to
access the medical records of Mr Cowie. It had engineered a situation whereby it misled
Mr Cowie's general practitioner into providing it with confidential documentation in the
form of his medical records by representing that it had obtained Mrs Cowie's consent to
that, when in fact it had not. In any event, the court in Re Baronetcy of Pringle of Stichill
had indicated that fairness required a consideration of the equities. The court had to take
into account that Vitality accepted that its purpose in requesting the records was to find a
foundation to avoid paying out on the policy. It had made a deliberately wide request to
the general practitioner with a view to making use of whatever over-disclosure he provided,
and did not come to the matter with clean hands. It should not, as a matter of equity, profit
39
from its own wrongdoing, and having acquired the documents unlawfully, should not be
permitted to use them.
Respondent's submissions
[62]
On behalf of Vitality, senior counsel submitted that I should accept the evidence
of Dr Mclennan and Mr Downes as credible and reliable, and reject any suggestion of
deliberate wrongdoing on the part of Vitality. If there was any irregularity in what had
happened, it was accidental or at worst careless. The mandate signed by Mrs Cowie entitled
it to obtain a targeted general practitioner's report relative to Mr Cowie's medical history. A
targeted request was made to his general practitioner, Dr Mclennan, seeking medical
records that related to, or contributed to, the causes of his death. Dr Mclennan then
provided information in the form of the medical records, considering that those records all
related to, or contributed to, the cause of death. In requesting and considering the medical
records, Vitality acted in accordance with the consent provided by the mandate, industry
guidance (the ABI Code and Joint BMI/ABI Guidance), and its own internal policies. To
the extent that any criticism could be made of the fact that information was requested and
provided in the form of excerpted records, rather than a formal report, that was an issue
of form over substance. Dr Mclennan's position was clear that either format would have
contained the same information. If the medical records were obtained in some way that
was irregular, they should be admitted in evidence at proof. They were highly significant
to the principal question in dispute between the parties, namely whether Mr Cowie made
a qualifying misrepresentation under the 2012 Act in his application for a policy of life
insurance. Absent the records, Vitality was effectively denied the ability to advance a
defence. Any fault on its part concerning the manner in which the records were obtained
40
was minimal. The relevancy of the records outweighed any prejudice to Mrs Cowie in
determining their admissibility. It was likely that, in any event, the records would have
been recoverable by way of commission and diligence, and there was no general rule under
the Scots law of evidence that prevented the recovery of, or reliance on, medical records
where they pertained to relevant issues at proof on the basis that they were allegedly
improperly obtained for the purpose of judicial proceedings.
[63]
The consistent approach adopted in Scots law was that doctor-patient confidentiality
did not render evidence privileged or inadmissible. Reference was made to Dickson on
Evidence, Vol 2, p 926:
"Communications made by a person to his medical attendant are not privileged;
for the discovery of truth is in general more important than the preservation of the
confidence which has often to be reposed in a physician or surgeon. At the same
time, good feeling should induce a party not to force a medical man to disclose
communications of a confidential nature unless the interests of justice make that
really necessary."
MacPhail on Evidence stated at 18.45:
"A doctor must, if called on, give in evidence information which he has obtained
about his patient from observation. It is thought that an oral or written
communication made by the patient to the doctor is not privileged, unless made
in connection with the dispute."
and at 18.47:
"There are other classes of civil litigation where justice cannot be done without
the disclosure by a doctor of information which he has obtained in the course of
his relationship with the patient, such as cases of medical negligence, or cases where
the issue is the sanity or facility or testamentary capacity of the patient, or the truth
of statements made by him in order to obtain insurance".
In D v National Society for the Prevention of Cruelty to Children [1978] AC 171, Lord Diplock
stated at p 218:
"The fact that information has been communicated by one person to another
in confidence, however, is not of itself a sufficient ground for protecting from
disclosure in a court of law the nature of the information or the identity of the
41
informant if either of these matters would assist the court to ascertain facts which
are relevant to an issue upon which it is adjudicating: Alfred Crompton Amusement
Machines Ltd v Customs and Excise Commissioners (No. 2) [1974] AC 405, 433-434.
The private promise of confidentiality must yield to the general public interest that
in the administration of justice truth will out, unless by reason of the character of the
information or the relationship of the recipient of the information to the informant a
more important public interest is served by protecting the information or the identity
of the informant from disclosure in a court of law".
[64]
The authorities vouched that communications between a doctor and patient were not
privileged. The discovery of truth in litigation was more important than the preservation of
confidentiality between a doctor and his patient. Where a doctor was cited to give evidence,
and that evidence fell within confidential discussions he had had with his patient, those
discussions were not privileged, and the doctor could be compelled to give evidence on
them. The fact that information had been communicated in confidence was not a sufficient
ground for preventing disclosure of that information where the public interest in the
administration of justice required its disclosure. In particular, in cases where the truth of a
statement made in order to obtain insurance was at issue, it might be that justice could not
be done without the disclosure of confidential information.
[65]
A plea of confidentiality based on a doctor-patient relationship did not prevent
recovery of medical records. Reference was made to Kelly v Kelly 1946 SLT 208 and
Higgins v Burton 1968 SLT (Notes) 52. Mrs Cowie had put in issue the health of her husband
in the 5 years prior to his taking out the life assurance policy. That was the most pertinent
factual issue in dispute between the parties, and Vitality would have been entitled to recover
the records by way of commission and diligence on the basis that it fairly required to be able
to meet the claim. If doctor-patient confidentiality would not have prevented the recovery
of the records by way of commission and diligence, then it followed that it could not be used
to prevent the use of records which had already been lawfully obtained.
42
[66]
If the court considered that the records had been irregularly obtained, the authorities
of Rattray v Rattray (1897) 25 R 315, (1897) 5 SLT 245, Duke of Argyll v Duchess of Argyll (No 3),
1963 SLT (Notes) 42, Thorntons Investment Holdings v Matheson [2023] CSOH 85, 2023
SLT 1305 and Re Baronetcy of Pringle of Stichill were instructive. The long-standing policy
of the law was to admit almost all evidence which would throw light on disputed facts
and enable justice to be done, although the court did have a discretion to admit or exclude
evidence in civil proceedings having regard to fairness in the particular circumstances of
the case. It had now been noted that in the modern law, an important counterweight to the
factors that favoured the admissibility of relevant evidence was the right to privacy. The
court's starting point should be to consider the significance and relevancy of the evidence
in question. The manner in which the party seeking to rely upon the evidence obtained it
was a relevant factor. One argument in favour of excluding such evidence was whether by
admitting the evidence a party would benefit from its own unlawful act. If there was no
question of dishonesty or deception on the part of the party seeking to rely on the evidence,
that favoured its admission. The issue of unfair prejudice to the party against whom the
evidence would be used at proof should also be considered. Within that factor, the court
should have regard to the extent to which the party who sought to rely upon the evidence
in question would in any event have been able to obtain that evidence (eg by way of
commission and diligence). Vitality's attempt to obtain the records by that route had not
been successful, but had not been an attempt to regularise its position, rather merely to see
if there were any further records which could be obtained. Its applications for commission
and diligence had not been opposed by Mrs Cowie on the basis of confidentiality.
Mrs Cowie had known since early 2017 that Vitality had been sent a considerable volume of
43
records by Dr Mclennan; it was her attempt to prevent their use now that was cynical and
opportunistic.
[67]
The factual background to the dispute was narrow and largely undisputed.
Mr Cowie entered into a life insurance policy with Vitality on 13 November 2015. The
decision to offer him that policy was based upon his application and his responses relative
to his health. As a result of his answers to the questions posed in the application, his request
for life assurance cover was dealt with by "Straight Through Processing" meaning that it
was underwritten by an automated rules engine rather than a human underwriter. In
completing the application, Mr Cowie answered a series of questions relating to his health
in the 5 years prior to that point. He died on 25 October 2016. The causes of death listed
on his death certificate were (a) intracerebral haemorrhage; (b) coagulopathy; and (c) liver
cirrhosis. Following his death, Mrs Cowie contacted Vitality to advise it of that fact. Vitality
replied by letter dated 31 October 2016, requesting further information to process the claim
under the life assurance policy. That letter advised that, in order to assist Vitality in
assessing the claim, it required inter alia a completed Medical Authority Certificate form,
which was enclosed. In addition, the letter advised that: "A Targeted General Practitioner's
Report will be requested on receipt of the Medical Authority Certificate". No further detail
about that was given, but in itself that wording gave sufficient context to why she was being
asked to sign the Medical Authority Certificate. Targeted medical reports were sought by
insurers in order that any request for medical information was objectively justified in the
circumstances of the particular claim. There was no standard format for a targeted GP
report. Vitality was a member of the ABI and the practice of requesting targeted medical
reports was reflected in guidance issued by it, entitled "ABI Code of Practice - Managing
44
Claims for Individual and Group Life, Critical Illness and Income Protection Insurance
Products" The code stated:
"3.5 Insurers are fully entitled to ask for any medical or other information needed
to properly assess a claim.
3.6 However, insurers should have a legitimate reason for requesting medical
information at the point of claim and should apply the principles set out in the joint
BMA/ABI guidance, `Medical Information and Insurance', on gathering medical
information at the point of claim.
3.7 Accordingly, insurers should only ask for medical information beyond that
needed to assess whether the insured event has occurred, or to case manage a
disability claim, to the extent that the circumstances of the claim reasonably prompt
the insurer to believe that there might have been misrepresentation by the customer.
In particular, insurers should:
3.7.1 Keep an audit trail of the reasons for requesting medical records (the Financial
Ombudsman Service, FOS, will be concerned at the use of medical evidence clearly
obtained without an appropriate reason).
3.7.2 Note that an early claim is not a reason by itself (although it may be a relevant
supporting factor).
3.7.3 Carefully consider the time period for which it is appropriate to request
information and the relevant areas that should be investigated.
3.7.4 Ensure that claims investigations are consistent with the timely collation of
evidence and the need to make claims decisions promptly."
[68]
Section 10 of the Joint BMI/ABI Guidance there referred to inter alia stated:
"It is recognised, however that the law does in certain circumstances, give people
with a claim arising from the death of an individual statutory rights of access to
information necessary to satisfy the claim. Insurance companies should exercise
those rights only where there are reasonable grounds to believe that relevant
information may have been withheld at the time the policy was taken out. In the
case of life insurance, this may be for example, where the insured person dies,
apparently unexpectedly, say within six months of taking out the policy or where an
insured person has died of heart diseases although the application made no mention
of the condition".
[69]
Vitality's own claims philosophy provided that:
"When considering claims, we should only request medical information about
specific conditions or which relates to a period appropriate to the medical condition
that is the subject of the claim and where we have reason to believe that there may
have been misrepresentation by the customer. This means we should tailor the
questions we ask the treating Doctors to what we need rather than include the full
application question so there is less risk we end up with information we don't need.
We must also ensure we document our reasons for requesting the medical
information and what information we've requested."
45
[70]
Mrs Cowie returned the completed Medical Certificate Authority form on
10 November 2016, along with a copy of Mr Cowie's death certificate. Vitality would have
regarded the claim under the policy as an early one given that the death had occurred
within a relatively short period of the inception of the policy and was non-accidental. That
there were legitimate reasons to investigate Mr Cowie's medical history would have become
all the more apparent upon receipt of the death certificate, as the claims assessor would have
been alerted to the fact that liver cirrhosis was listed as a cause of death. Liver cirrhosis was
a condition which developed over a period of time due to a number of known risk factors.
No such condition was noted by Mr Cowie on his application. There was therefore a
legitimate reason for deciding that the medical records relative to his cause of death should
be considered in adjudicating the claim, in order to determine whether there had been a
potential misrepresentation by the insured. Vitality wrote to its then agents for requesting
and collecting medical records and reports from medical practitioners, asking them to obtain
Mr Cowie's medical records relating to or contributing to the cause of death in the 5-year
period from 12 November 2010 to 12 November 2015, and that request was passed on to
Dr Mclennan along with a copy of the signed Medical Authority Certificate. Reminders
were sent on 6 and 19 January 2019. On 19 December 2016 and 23 January 2017
Dr Mclennan issued the medical records to Vitality's agent. The request to Dr Mclennan
was for records that "related to or contributed to the cause of death", which complied with
industry guidance. There were three factors which led Dr Mclennan to determine that
Mr Cowie's medical records related to or caused his death. Firstly, when a person had
liver cirrhosis, one had also to consider any records relating to alcohol given the potential
relevancy of alcohol consumption to that condition. Therefore, entries in the records that
46
related to alcohol consumption were relevant and recoverable in terms of the mandate and
industry guidance. The same logic applied to the records disclosing deranged liver function
tests. Secondly, a patient with liver cirrhosis might be at an increased risk of developing
Barrett's Oesophagus, so entries in the records relating to that condition were relevant
and recoverable. Thirdly, a patient with haemochromatosis was at an increased risk of
developing cirrhosis, so entries relating to that condition fell into the same category. Taking
those factors into account, Dr Mclennan remained of the view that the records produced
were all records "relating to or contributing to" the cause of death. Mrs Cowie led no expert
medical evidence at proof to challenge that professional opinion, preferring instead to rely
on a narrow and contrived definition of "relating to" as that phrase was used in the letter of
31 October 2016.
[71]
Vitality thereafter considered the records and determined that Mr Cowie had made
a series of qualifying misrepresentations in terms of section 4(2) of the Consumer Insurance
(Disclosure and Representations) Act 2012. It advised Mrs Cowie of that decision by way of
letter dated 27 February 2017.
[72]
Mrs Cowie had provided informed consent to the request to Dr Mclennan. The
correspondence between her and Vitality made it clear why she was being asked to provide
her consent via the mandate. Given that the death certificate was being separately requested
to confirm that the insured event (ie Mr Cowie's death) had occurred, it was obvious that
the mandate was to be used to recover information to be used in assessing the claim.
Mrs Cowie's consent was validly given to obtaining information relative to Mr Cowie's
cause of death for the purposes of assessing her claim. The Access to Health Records
Act 1990 did provide a basis for a request for information such as was sought by the
respondent from Dr Mclennan, but did not set out any formal procedure by which such
47
a request for information should be made. There was no proper basis for any suggestion
that Vitality had in some way not complied with the brief terms of the Act.
[73]
The information sought by the respondent from Dr Mclennan was a targeted request
for information as envisaged in Vitality's letter of 31 October 2016 to Mrs Cowie. Records
were only sought that related to or contributed to the cause of death. Those records were
sought only for the 5-year period prior to the commencement of the life insurance policy.
An issue of interpretation arose in relation to the letter of 28 November 2016. Mrs Cowie
argued that section 69(1) of the Consumer Rights Act 2015 ought to apply to that letter on
the basis that it was a notice in terms of section 61 of the 2015 Act. However, the letter was
not a consumer notice. It did not relate to rights or obligations as between the parties.
While it was part of Vitality's investigations into Mrs Cowie's right to claim under the life
assurance policy, it was simply a request for information and did not relate to her rights.
Further, section 61 was concerned with documents which it was reasonable to assume were
intended to be seen by a consumer. There was no evidence to suggest (and neither did its
terms suggest), that that applied to the letter of 28 November 2016. It was a letter written
directly to Dr Mclennan in his professional capacity and should be interpreted in that
context. The court ought to apply the normal principle of interpretation when considering
its terms, ie determining the natural and ordinary meaning of the words in their context. In
any event, section 69(1) did not apply because it only came into operation where a term of
the consumer notice could have different meanings. As was noted in CC Construction 22
"The section [section 69(1)] does not come into play simply because it is possible
to argue for differing interpretations at the start of the exercise of interpreting a
contractual term. Instead for the provision to operate there must be genuine
ambiguity after the normal process of analysing the language used in its context
to determine the intention of the parties has been undertaken".
48
[74]
There was no genuine ambiguity after analysing the language used in the letter of
28 November 2016, such that the court should apply the interpretation most favourable to
Mrs Cowie. The first issue of interpretation was what was meant by the words: "relating
to or contributing to the cause of death". On a plain and ordinary reading of those words,
they referred to records which were related to the cause of death in the sense of having some
connection to it. The second issue of interpretation was whether the letter was a request for
the entirety of Mr Cowie's medical records. Again, it was clear that all that had been asked
for was material relating to or contributing to the cause of death.
[75]
Vitality had complied with the ABI Code, the joint BMA/ABI guidance, and its own
claims philosophy. It had a legitimate reason for requesting medical information at the
point of claim and it only asked for medical information to the extent that the circumstances
of the claim reasonably prompted it to believe that there had been a misrepresentation.
At no stage did it ask for Mr Cowie's full records. It only sought information relative to
the causes of death and within a 5-year period of Mr Cowie completing his application.
[76]
A question existed in relation to the distinction, if any, between "records" and a
"report". A variety of terms were used in the relevant correspondence and documentation.
As a matter of substance, if not form, these concepts described the same information.
Whether that information was produced in the form of excerpted medical records, or by
a doctor typing out what those medical records stated in the form of a secondary report,
details of the life assured's medical history would be provided, as was consented to in the
mandate. What Dr Mclennan provided to Vitality was, in substance, a report. He did not
simply print and send the complete set of medical records. Even if he had undertaken the
preparation of a secondary report, it would have been prepared using the medical records
49
and would have contained the same information, as he confirmed in his evidence; in effect,
a report would have simply pieced together the information in a narrative.
[77]
The decision of the Financial Ombudsman in Mrs L and the Liverpool Victoria Friendly
Society (DRN7370582) was of limited assistance to the court. The volume of medical records
disclosed in that case went far beyond that requested. A claim was made on a policy
in 2012, the policy having been taken out in 2008. The entire medical records dating back
to 1975 were produced and considered by Liverpool Victoria. The insurers, further, relied
upon information that was entirely irrelevant to the claim made.
[78]
If the court considered that Vitality was not entitled to receive records to the extent
that it did, then the question of the admissibility of that evidence at proof arose. There was
no general rule that irregularly obtained evidence was inadmissible in a civil proof; rather,
the court had a discretion whether to admit or exclude that evidence having regard to the
fairness of the particular circumstances of the case. Vitality acknowledged that the records
were confidential information for the purposes of Article 8 of the ECHR, and indeed that
they were of a highly confidential and private nature. That was a factor to be weighed
against their admissibility. However, the records were of such a high degree of relevance
and significance to the dispute that the scales strongly tilted towards them being treated as
admissible. Vitality's entire ability to defend the action raised against it would probably
depend on them. The effect of the 2012 Act was that there were narrow grounds upon
which an insurer could reject a claim made under a consumer insurance policy. The burden
was on an insurer to show that a qualifying misrepresentation was deliberate or reckless.
In circumstances where an insurer required to demonstrate that a consumer was aware
of health conditions that he should have disclosed in completing an application for life
insurance, that consumer's medical records relative to those conditions were highly relevant.
50
Indeed, it was difficult to see how an insurer could ever avoid an insurance policy on the
grounds of a qualifying misrepresentation under the 2012 Act having been made if it were
not able to consider the insured's medical records where there was a reasonable basis for
considering that a misrepresentation had been made. The evidence of Mr Downes was clear
that, had Vitality been aware of Mr Cowie's deranged liver function tests as disclosed in the
records, it would not have accepted his application for life insurance. The question was not
whether the records disclosed entries that were relevant in causing Mr Cowie's death, but
rather whether they were relevant to whether he made a qualifying misrepresentation in
terms of the 2012 Act in completing the application. It would be disproportionately against
the interests of justice to exclude the records from evidence.
[79]
The next factor that should be considered was the manner in which the party seeking
to rely upon the evidence had obtained it. The balance would swing against admitting
evidence where a party would thereby benefit from its own unlawful act. In this case, there
was no question of dishonesty or deception on the part of Vitality, and that was another
factor favouring admission of the records. Any criticism which could be levied against
Vitality in relation to the manner in which it obtained the records should be limited to the
fact that the letter of 31 October 2016 was not explicitly clear that the targeted medical report
to be sought might take the form of excerpts of medical records. The letter of 28 November
2018 sent to Dr Mclennan explicitly asked him to ensure that the consent form allowed it to
access the records requested. All that was requested was information targeted to the causes
of death within the period of 5 years before the application. In the two chaser letters of
6 and 19 January 2017, Dr Mclennan was given the option of providing either records or
a report. He ultimately took the decision on what would be relevant and provided that to
Vitality, which relied upon him to exercise his professional expertise in determining what
51
information related to or contributed to Mr Cowie's cause of death. Vitality's requirement
to refer to the records outweighed any prejudice to Mrs Cowie. The records were evidence
that would probably have been recoverable, in any event, by way of commission and
diligence. At no point had the court ruled that Mr Cowie's medical information was not
recoverable on the basis of confidentiality. Doctor-patient confidentiality alone was not a
sufficient basis for treating evidence as privileged or inadmissible. Further, Dr Mclennan
had confirmed that if he had prepared a report, in a strict sense, that report would have been
written using the medical records and would have contained the same information, albeit in
a different format.
[80]
It was recognised that if the court were to determine that the records were recovered
without consent, then the ability to enforce the right to confidentiality was in itself a
weighty consideration to be entered into the balance when the common law exercise as
to admissibility was being carried out. However, in the present case, the relevant medical
records did not amount merely to one adminicle of evidence amongst others which
supported Vitality's case on the substantive merits. Absent the records, it would be denied
the possibility of establishing a qualifying misrepresentation. Mrs Cowie would, in effect,
succeed in her action without any consideration of whether there had been a qualifying
misrepresentation. In those circumstances, there was a clear and obvious risk of there being
a wrong and unjust result as between the parties. It is not just that the court would be
deprived of evidence so that it might be led to the wrong result. Mrs Cowie had raised these
proceedings and put in issue her husband's state of health and his knowledge during the
5-year period preceding the proposal, so that it must have been plain that the medical
records would be relevant. Against that background, it was artificial for her now to
complain about their admissibility.
52
[81]
The court was required also to consider the admissibility of the records in terms
of Article 8 of the ECHR. Vitality accepted that the records were information in which
there subsisted a reasonable expectation of privacy. The application of Article 8 to the
admissibility of irregularly obtained evidence was discussed in Thorntons Investment
Holdings Limited at [91] where the court held that use of the information must be necessary
for one of the purposes set out in the second paragraph of the Article. That could include
use in judicial proceedings where the information in question was potentially material.
Such use of information must be fair and proportionate to the protection of the rights and
freedoms of others. However, that question was, in essence, resolved by the discussion and
determination of the same issues under the common law tests. Finally, there had to be a
clear and accessible basis upon which the court could proceed in allowing the desired use.
The question of the public interest in the administration of justice was also engaged.
However, the common law tests were sufficiently clear that a suitably experienced legal
practitioner would be able to assess and advise a client who required to know his legal
position.
[82]
Mrs Cowie's approach to the question of whether Vitality obtained the records "in
accordance with law" was at odds with the court's analysis in Thorntons Investment Holdings.
While it was correct that any interference with Article 8 rights must be "in accordance with
law", the potential interference in this case lay in the court deciding to permit Vitality to rely
upon records at proof; see Thorntons Investment Holdings at [91]. The application of the rules
contained in the common law of evidence on the admissibility of evidence was the domestic
legal basis upon which the court could determine whether to treat the records as admissible,
and thereafter apply the tests noted under Article 8(2). The records should be treated as
admissible at common law, and treating them as admissible would also be compliant with
53
Article 8. LL v France was a case where the court found that the domestic French courts had
breached Article 8 by permitting reliance on medical records obtained without the patient's
consent. However, that was on the basis that the interference with the patient's private life
could not be justified, as the disputed evidence was not decisive to the outcome of the case.
In other words, the interference with the applicant's right to respect for his private life was
not proportionate to the aim pursued and was therefore not necessary in a democratic
society for the protection of the rights and freedoms of others. In the present case, Vitality
had set out why the records were highly relevant to the present dispute.
[83]
MK v Ukraine could be distinguished for several reasons. It was an action for
damages relating to the disclosure of medical information and was not concerned with a
court subsequently complying with Convention rights in permitting reliance on the material
at trial. Further, the court did not require to determine whether any interference could be
justified by reference to legitimate aims and proportionality, because the disclosure did not
comply with domestic law, which had also been applied inconsistently by the domestic
courts. I v Finland was to like effect.
[84]
Z v Finland at [44] articulated the justifications for interference with Article 8 in a way
entirely consistent with the approach taken in Thorntons Investment Management. It held that
the domestic courts could make reference to medical records on the basis that that pursued
a legitimate aim, albeit those courts had failed to take necessary steps to protect the
anonymity of the applicant.
[85]
In the present case there was a clear basis upon which the initial burden of
complying with domestic law could be satisfied by the proper application of the common
law test as to the admissibility of evidence. Thereafter the court should apply the approach
articulated in Thorntons Investment Holdings at [91].
54
[86]
Mrs Cowie finally argued that Vitality was not entitled to rely upon the records
because they were not obtained for the purposes of the litigation. However, Vitality did
not propose to use the records for a different purpose to that for which they were originally
obtained. The mandate was granted by Mrs Cowie in order that Vitality could obtain details
of Mr Cowie's medical history, in order properly to adjudicate on the claim. It was upon
receipt and consideration of those records that it determined that Mr Cowie had made
qualifying misrepresentations in terms of section 4(2) of the 2012 Act and that it was entitled
to avoid the life assurance policy and refuse the claim. In this action, Mrs Cowie challenged
its entitlement to do so. The records related to the basis upon which it made its
determination. Iomega Corp v Myrica (UK) Ltd (No 2) 1998 SC 636, 1999 SLT 796 had no
relevance to the present case, as the material in question here had not been recovered by
way of commission and diligence.
Decision
The witnesses
[87]
Mrs Cowie's affidavit was accepted as representing her evidence with no need for
cross-examination. The content of the affidavit was straightforward and I see no reason to
doubt her credibility or reliability in relation to any matter with which she dealt. She did
not address the question of what she would have done had she been asked specifically to
consent to the release of Mr Cowie's medical records, either generally or in "targeted" terms,
but ultimately I have come to the view that, in this respect as in others, this is not a case
which turns upon the consideration of any counterfactual situations, but rather on the
ascertainment of what actually happened (a matter ultimately not in much, if any, doubt)
and a determination of the legal consequences of that situation.
55
[88]
Dr Mclennan was also in my estimation fundamentally honest in giving his evidence.
However, having appreciated that errors with potentially significant ethical and legal
consequences had been made on his part, it appeared to me that - naturally enough,
perhaps - he had persuaded himself, and in turn sought to persuade the court, that those
errors were relatively minor and that matters would have turned out more or less the same
even had they not been made. I do not place any reliance on his evidence in these regards.
He had no actual recollection of what had happened when he considered and responded to
Vitality's request for information, and any evidence of what would have happened in other
circumstances is every bit as much an artefact of his imagination. Again, however, since I
am concerned with what did happen and not with what might have happened in other
circumstances, the matter is of little moment.
[89]
Much more serious is the fact, already mentioned, that Dr Mclennan was unable in
his oral evidence to stand by elements of his statement, which he had at the outset affirmed
as a true and accurate account of events, in particular but not exclusively in relation to the
issue of whether he had communicated with Mrs Cowie before sending any material to
Vitality. The use of pre-prepared affidavits or statements as the evidence in chief of
witnesses in commercial proceedings was an innovation on the part of a former commercial
judge of this court, borrowed more or less directly from the practice in England and Wales.
The introduction of the facility was unaccompanied by the sort of committee deliberation,
guidance note or protocol which one might have expected to attend such a fundamental
change in the dynamic of the proof process. Subsequent judicial guidance on the subject has
been at best reactional and piecemeal - eg Luminar Lava Ignite Ltd v Mama Group plc [2010]
CSIH 1, 2010 SC 310, 2010 SLT 147 at [71] - [75]. Perhaps it was thought that the proprieties
of preparing the requisite statements were obvious, or would be osmotically absorbed from
56
the practice south of the border. If so, experience has not entirely vindicated any such
expectations. Occasions such as the present, or similar situations in which a witness has
plainly been presented with a script which is not of his own making to adopt as his evidence
(cf Beaton v Beaton [2024] CSOH 41) are by no means uncommon. It may be that the time
for more comprehensive and authoritative guidance has finally come, building on and
developing the two core propositions that the source of the content of a statement should
be the witness him - or herself, and that the mode of presentation of that content should
be as close to the witness's own expression of it as will prove helpful to the court. In the
meantime, it requires to be recognised that, where a witness in giving evidence orally
reverses his position on a simple point of fact asserted in his affidavit or statement, it is
highly likely that something substantively wrong has occurred. At worst, that something
may be an attempt at perjury on the part of the witness, or professional misconduct on the
part of those who assisted in the composition of the document in question. At best, it may
be carelessness on the part of either. In any event, for the court to do nothing amounts to a
tacit acquiescence in, if not encouragement of, whatever has led to the situation. That would
be an undesirable situation. It is normally entirely open to the court in such situations to
conceive that it has lost such confidence in the truth and accuracy of any affected statement
as to justify its being disregarded in its entirety, as well as to cause appropriate enquiry to
be made as to how the situation came to pass. In the present case, I am only prepared to
accept Dr Mclennan's evidence insofar as it coincides with the unchallenged evidence of
Mrs Cowie or other agreed matters. In its other aspects I do not consider it sufficiently
reliable to form a basis for any conclusion of fact, for the two separate reasons (ie, its
reconstructed nature and the doubts which exist in any event as to whether it was the
product of his own mind) which I have identified.
57
[90]
In relation to Mr Downes, again I have no doubt that he gave his evidence honestly
on the matters of fact to which he had been asked to speak. He also deserves credit for
maintaining his composure whilst continually being, in effect, branded the scoundrel
representative of a thoroughly disreputable industry by senior counsel for Mrs Cowie. As
to the objections made to elements of his evidence, I repel the objection (made generally,
rather than solely in relation to his evidence) that the medical records in issue should not
be referred to in evidence in advance of a determination of their admissibility. As will
subsequently be discussed, the potential relevance of the contents of those records to the
proper determination of the issues in dispute in the underlying proceedings may well be
a weighty matter, one way or the other, in striking the balance as to their admissibility in
those proceedings, and the court is unlikely to be able to perform its function in ruling
upon that question without being made aware, to some extent at least, of the nature of
those contents. I accept that it is good practice in circumstances such as the present for
parties to restrict reference to sensitive material, the admissibility of which is disputed,
to the minimum extent necessary to enable the court properly to perform that function.
That practice was followed in the proceedings before me.
[91]
I also repel the objection that Mr Downes, in talking about working practices in the
insurance industry, was giving expert evidence without being qualified as an independent
SLT 209. He was simply speaking to his extensive experience of what happens in fact in
that industry, not furnishing the court with any sort of technical or scientific insight for it
to apply to matters of fact in order to enable it to draw conclusions pertinent to the decision
it had to make. The valid objection to the evidence of Mr Downes is that, in very large
measure, it had no relevance to the issues which the court had to determine. Plainly, his
58
views on the proper import of various documents and on the mixed matters of fact and
law which were for the court to determine are of no moment whatsoever, and have been
entirely disregarded by me in coming to the legal and factual conclusions necessary for the
determination of the dispute. Again, the relatively unregulated manner in which witness
statements and affidavits have been introduced into the practice of the court to represent
the bulk of the evidence in chief of witnesses appears to have left some doubt in the
minds of practitioners as to how and when objection should be taken to the content of
such statements, often leading (as here) to the presentation of extensive notes of such
objections at the commencement of the proof diet, which is rarely, if ever, a convenient
point at which to deal with them. While there may occasionally be fundamental objections
to the competency or admissibility of evidence which do sensibly have to be dealt with
before the evidence in question is led, in most cases the better practice is simply for
counsel to indicate in general terms before the proof commences that it is desired to reserve
questions of relevancy, in particular, until the stage of submissions at the end of the proof
diet - by which point matters are in any event likely to have become more focussed than
was previously possible.
Were Mr Cowie's medical records lawfully and properly obtained by Vitality?
[92]
The first question which requires to be addressed is whether the acquisition by
Vitality of Mr Cowie's medical records was unlawful or otherwise attended by material
impropriety. I have not found this a difficult question to answer. Mrs Cowie signed a
medical authority certificate which on its face bore to give Vitality permission "to obtain
details of the Life Assured's medical history from his/her medical practitioner". That was
the certificate which was presented by Vitality to Dr Mclennan. However, that certificate
59
had been obtained from Mrs Cowie against the express narration (contained in Vitality's
letter to her dated 31 October 2016) that it would be used to obtain a "Targeted General
Practitioner's Report". That was not the purpose for which the apparent consent obtained
from her was used. Rather, it was presented to Dr Mclennan along with a request that
he should provide Mr Cowie's medical records within the period 12 November 2010 to
12 November 2015 insofar as they contained material relating to or contributing to his
cause of death. Although the subsequent two chasing letters to him from Vitality's agent
mentioned the option of a report instead of records, he had by then sent some records and
subsequently sent more. Further, instead of providing the selection of records which had
been requested, he provided all or virtually all of the records pertaining to Mr Cowie held
by his practice, without limitation of time or subject-matter. The material in fact obtained
by Vitality was, therefore, not a medical report, nor was it in any way targeted or limited
by reference to subject-matter or timespan. It was not material which Mrs Cowie had
consented to Vitality obtaining, and accordingly was not obtained lawfully by it.
[93]
Inherent in that conclusion is the rejection of the contention that there is no material
distinction between a medical report and medical records. A report is the product of the
application of a medical practitioner's mind to the material presented in a patient's medical
records, and to some extent at least will (or at least should) involve an informed assessment
of what is material to the subject-matter and purpose of the request for the report, and the
filtration out of information surplus to that subject-matter and purpose. Records are simply
a collection of raw data. A person to whom they are provided is able to decide entirely for
himself what he finds interesting or useful in them, unconstrained by the limitations which
should be inherent in the provision of a report. There is no relevant equivalence between
the two forms of request for information.
60
[94]
A number of ancillary points may be made in relation to the general question of
Vitality's acquisition of Mr Cowie's medical records. Although I consider that the focus in
this case must be on what actually happened rather than what might have happened, it is
appropriate to note that the evidence does not permit any conclusion to be drawn as to
whether Mrs Cowie would have consented to Mr Cowie's records being obtained by
Vitality, whether on some targeted basis or otherwise, had she been asked to do so. It
cannot, further, be maintained that a targeted request for a report from Dr Mclennan
(which is what she did consent to) would have produced essentially the same information
as was in fact provided by him. There was no evidence before the court as to what form
such a targeted request would have taken, and even if one assumes that it would have
sought information relevant to the cause of Mr Cowie's death and relating to the period
from November 2010 to November 2015, there is - for reasons already discussed - no reliable
evidence as to what Dr Mclennan would have provided in response to such a request.
[95]
I do not accept that the Consumer Rights Act 2015 has any impact on the issue of
whether Vitality falls to be regarded as having obtained Mr Cowie's medical records
unlawfully. As I understood the argument in this regard, it was that the letter sent
to Dr Mclennan on 28 November 2016 requesting the provision of those records was
ambiguous in that it could be read as requesting only records narrating or setting out the
causes of Mr Cowie's death, and that standing the terms of section 69(1) of the 2015 Act,
it should be so read because it fell to be regarded as a consumer notice within the meaning
of section 61 thereof. That argument doubly fails, firstly because the letter to Dr Mclennan
cannot properly be regarded as a notice which it was reasonable to assume was intended
to be seen by a relevant consumer (in this case, Mrs Cowie). The letter was sent to
Dr Mclennan and Mr Downes explained that Vitality's policy was to minimise its interaction
61
with bereaved claimants in order to attempt to avoid causing any unnecessary distress.
Whether or not one accepts that such was indeed the rationale lying behind that policy,
Vitality did not present the letter in principal or copy form to Mrs Cowie and, although it
was a matter for Dr Mclennan whether he did so or not, it cannot be said that it is reasonable
to assume that that was what Vitality intended. The second reason why the argument fails
is that, even if the letter had been a consumer notice within the meaning of section 61, the
construction contended for, that "relating to" actually means "relating", is not an available
reading of the letter. Whatever the precise limits of the exercise contemplated by
section 69(1) may be (a matter upon which I express no view), they certainly do not extend
to the reframing of the language actually used for no reason other than to produce a
situation more favourable to a consumer than would otherwise pertain. The language used
in the letter to Dr Mclennan of 28 November 2016, seeking Mr Cowie's medical records
containing entries "relating to or contributing to the cause of death in the 5 year period
from 12/11/2010 - 12/11/2015" was entirely clear. The only room for debate was whether
any particular matter so recorded did or did not relate to, or contribute to, the cause of
death. The request was not on any view merely one for records setting out or relating the
cause of death, and no canon of construction - literal, purposive or otherwise - could support
such a reading. In such circumstances section 69(1) of the 2015 Act can provide no
assistance. Since I have already held by another route that Vitality obtained Mr Cowie's
records unlawfully, that conclusion has no practical consequence.
[96]
Had the only criticism of Vitality's actions been that it acted in breach of some
relevant ABI guidance, I would have found it difficult to sustain such a complaint. The
guidance tends to advance broad general propositions and equally wide potential
exceptions, about the scope of which much argument could be had. Even if it had been
62
possible to conclude that the guidance had not been followed, the only conclusion could
have been that Mr Cowie's records were obtained by some element of impropriety on the
part of Vitality, a finding which would be wholly overtaken by my conclusion that, in fact,
they were obtained unlawfully. In these circumstances, it is not useful further to explore the
question of the import of ABI guidance in this case. Similarly, I did not find the decision of
the Financial Ombudsman in L v Liverpool Victoria to be useful for present purposes. The
Ombudsman was dealing there with what was fair and reasonable conduct on the part of
the insurer in a particular set of circumstances. Given my conclusion on the question of the
legality of Vitality's acquisition of the records, that is not a question with which I have to
deal.
Should the medical records be admitted in evidence in the substantive proceedings?
[97]
It will be recalled that Vitality now seeks to use in the substantive proceedings only
a selection of the records provided to it. However, those documents were part of the set
of records which was unlawfully obtained, and accordingly a serious question arises as to
whether they should be admitted into evidence at all. That question falls to be answered
both according to the common law of Scotland and by reference to the requirements
imposed on the court by the Human Rights Act 1998, particularly in connection with
Article 8 of the ECHR. I accept that the content of the modern Scots common law in this
regard has been heavily influenced by the treatment of the corresponding subject matter in
the Convention. Given that the latter expresses the minimum legal standards acceptable in
European democratic societies, it could hardly be otherwise. However, it would be going
too far to claim that the common law has been entirely subsumed within the Convention
principles; it retains a life of its own within the parameters set out by the Convention. So
63
much is acknowledged by Article 8(2)'s recognition that interference with the rights
conferred by that Article may only be permitted if such interference is "in accordance with
law", a stipulation that would make no sense if the only applicable law was itself expressed
in the Convention.
[98]
It is indisputable that the common law now regards the confidentiality inherent in
medical records, even after the death of the patient, as a very strong aspect of an individual's
fundamental right to autonomy and privacy, although not an inviolable one. I doubt that all
of the observations made at the end of the 1960s in Boyle, particularly those concerning the
balance of private and public interests in this context, continue accurately to represent the
relative content of the common law. Although the notions that "most rigorous scrutiny"
of any attempt to displace the confidentiality in question should take place, and that the
confidence should be breached only where that is "strictly necessary" in the specific
circumstances of any particular case, have primarily been expressed by the ECtHR in the
context of Article 8 (eg Frāncu), they equally represent features of the modern common
law, and exemplify the influence of the relative Convention jurisprudence on that law.
[99]
At common law, the court has a discretion to admit or exclude unlawfully obtained
evidence, the ultimate touchstone being whether it is fair in all the circumstances to admit it.
In assessing fairness the court looks at the nature of the evidence, the purpose for which
it would be used, and the manner in which it has been obtained. A significant factor is
whether its admission would throw light on disputed facts and enable justice to be done:
Baronetcy of Pringle of Stichill at [77] and, more generally, the cases reviewed therein.
Adopting that approach, it is in my view appropriate to begin by recalling the overall
context against which the question arises. Mrs Cowie claims to be entitled to a payment
from Vitality in consequence of her husband's death. That entitlement is said to arise from a
64
contract entered into voluntarily between him and Vitality. Vitality's willingness to enter
into that contract proceeded upon certain statements which Mr Cowie chose to make to
it about the state of his health. It follows that this is a case in which Mr Cowie provided
information about his health with a view to accessing the benefits which his widow now
claims. It is not a case in which questions about the state of his health arise without his
having chosen to put that matter in issue (by making statements about it so that the contract
which is now sued on would be entered into in the first place) or where information about
his health has by some unexpected or unforeseeable turn of events come to be thought to be
relevant to the disposal of the substantive dispute. That is a particular feature of this case
which distinguishes it from the others cited to me in relation to the proposed use of
confidential medical information; it provides the backdrop against which the factors
informing the court's decision as to what fairness demands must be viewed.
[100]
Turning to those factors, it is obvious that the material which Vitality wishes to
adduce in evidence is potentially of very significant import for the outcome of the
underlying dispute. Its defence to Mrs Cowie's claim is that Mr Cowie's statements about
his health, made as part of the process of obtaining the relevant contract of insurance, were
"qualifying misrepresentations" in terms of section 4(2) of the Consumer Insurance
(Disclosure and Representations) Act 2012. I accept counsel for Vitality's submission that
its prospects of making out that defence are essentially non-existent without the content of
Mr Cowie's medical records, insofar as they touch upon the underlying facts said to render
what he said misrepresentations, being available for use in evidence in the substantive
dispute. Further, although it cannot be said that such evidence in itself will necessarily be
determinative of that dispute, there is a very clear basis for argument on the basis of the
content of the medical records that qualifying misrepresentations may indeed have been
65
made. In those circumstances the potential significance of the disputed material in enabling
the court to reach the correct and just conclusion in the substantive dispute is clear. I was
unable to understand, let alone agree with, the repeated assertion of counsel for Mrs Cowie
that the disputed material was quite irrelevant to the proper resolution of the underlying
dispute. This factor supports the view that it might well be wholly disproportionate to
exclude material of such potentially probative quality from the court's consideration in that
dispute.
[101]
On the other hand is the inherent strength of the private and public interests in the
confidentiality of medical records. Although the use of the disputed material in the present
case is, for the reasons just stated, "strictly necessary" for the purposes of just resolution
of the underlying dispute, and it is to be hoped that the court's current scrutiny of the
circumstances of the case may properly be described as rigorous, the fact remains that the
concept of a right to privacy and the related notion of a right to maintain the confidentiality
of one's medical information is much more developed at common law, and falls to be
accorded much more significance in the court's balancing of the various factors in play,
than was the case when decisions such as those in Rattray and Duke of Argyll were made.
[102]
Next fall to be considered the circumstances in which Vitality came to be in
possession of the controversial material. One argument in favour of excluding unlawfully-
obtained material is that the court may, by admitting it, enable a person to benefit from his
own unlawful act (see Rattray, per Lord Young at 319 - 320). It was argued by counsel for
Mrs Cowie that the presentation to Dr Mclennan of a request which was unjustified by the
consent in fact obtained from her ought to be regarded by the court as a deliberate ploy on
its part to obtain a greater range of information than that to which it was entitled. While one
can certainly see a basis for suspicion that that was indeed the case, the evidence ultimately
66
fails to support it. The South African-based claims assessor who instructed the request
for information to be issued to Dr Mclennan ought to have known, in the context of a
properly-run organisation, that the terms of that request exceeded the scope of the consent
obtained by the UK end of the operation, but a conclusion that she actually did know that
would be speculation rather than an inference properly capable of being drawn from the
available evidence. Further, much of the information in fact sent to Vitality by Dr Mclennan
was sent because of his rather idiosyncratic reading of the terms of the letter of request sent
to him and his unpredictable choice to disregard the plain limitations as to timescale there
expressed. I conclude that Vitality was at least partially at fault in the sequence of events
which led to its unlawful acquisition of the records in question, but not that that acquisition
was the result of conduct on its part calculated to achieve that outcome.
[103]
Each party suggested that the availability to Vitality of an application for commission
and diligence as a means of lawfully obtaining the records in question was a factor that
should be taken into account in striking the balance of fairness in the present context.
Vitality argued that it could have obtained the records by that means and that the
availability of a lawful route to the recovery of the material in dispute drew the sting,
to some extent at least, from the fact that they had in the event been obtained by another
means. Mrs Cowie argued that the fact that attempts had been made by Vitality to obtain
the records by way of commission and diligence, and had failed, meant that any grant of
permission to use the material otherwise obtained would in effect be an arbitrary reversal
of the court's previous decisions not to allow recovery by an available legal route. I do
not agree entirely with either submission. It is certainly an unusual feature of the case
that Vitality made attempts to recover the records in question by way of application for
commission and diligence after it had already obtained them directly from Dr Mclennan,
67
and the fact that those attempts failed in all material regards does not provide much support
for its suggestion that there was a viable legal route to their recovery, although the issue of
confidentiality was not - at least directly - the ground of their failure. Equally, a decision by
the court now to allow use of the records would not amount to a vacation of its previous
decisions not to permit their recovery by way of commission and diligence. The fact of the
matter is that the records have come into the hands of Vitality, and the court has to decide
what it is fair to do in that situation. If the decision is that the records should be admitted
in evidence, that is in no way arbitrarily negating the unlawful nature of the manner in
which they were obtained by Vitality; rather it is a ruling on what the consequences of that
illegality ought to be, taking into account all the circumstances and deciding what is fair in
the balance of the private and public interests engaged. The fact that a lawful route to the
recovery of the material in question existed and was not successfully used for their recovery
weighs in that balance, but not to the extent argued for by either party.
[104]
Drawing these various strands together, I conclude that that balance in this case falls
to be struck at common law in favour of the admissibility of the material in question. Had
this been a case in which the medical history of Mr Cowie had unexpectedly become highly
relevant to some issue in dispute between the parties, and Vitality had obtained records
pertaining to that matter unlawfully and in consequence of a degree of fault on its part,
I would have had little hesitation in determining that the records were inadmissible.
However, the decisive, indeed overwhelming, factor which renders it fair to admit the
disputed material despite its confidential nature and the unlawful manner in which it was
obtained is the fact that the state of Mr Cowie's health in the 5 years prior to his application
for cover was - entirely in accordance with his own choices - foundational to his contractual
relationship with Vitality. There would be no such relationship, no claim and no need for a
68
defence to a claim, had he not voluntarily made statements about his health in order to
obtain the policy of insurance in question. To exclude evidence capable of casting a
particular light on the truth and accuracy of those statements would be grossly unfair to the
private interests of Vitality in advancing its own position and to the public interest in seeing
the court do justice on the basis of all material relevant to its decision. Those interests clearly
outweigh the public and private interests in maintaining the confidentiality of information
pertaining to Mr Cowie's health in circumstances where he chose to make the state of his
health the basis of his dealings with Vitality.
The exercise in terms of Article 8
[105]
Apart from what it would do at common law, the court may only, in conformity
with its duties as a public authority in terms of the Human Rights Act 1998, countenance
the disputed material being used as evidence in the substantive dispute if the conditions set
out in Article 8(2) are met. One of those conditions is that interference by a public authority
with the exercise of the Article 8 right is impermissible unless it is "in accordance with the
law". Counsel for Mrs Cowie argued under reference to MK v Ukraine that, since the records
in dispute here had clearly not been acquired in accordance with the law, the requirements
of Article 8(2) could not be met and any attempt to justify the use of that material
accordingly had to fail in limine.
[106]
I have no hesitation in rejecting that submission. Firstly, it is not what Article 8(2)
actually says. The terms of the Article require any action of a public authority (here, the
court) which interferes with Article 8 rights to be in accordance with the law. It does not
require that the situation which the court is addressing in a way which may interfere with
those rights must itself have occurred in accordance with the law. Secondly, MK v Ukraine
69
does not vouch the proposition contended for. In that case, a public authority (a state-run
hospital) had used confidential medical information in a manner which was (at least
according to the ECtHR) not in accordance with domestic law, and the claimant was seeking
compensation for that action. There was in those circumstances no prospect of justifying the
public authority's established interference with the claimant's Article 8 rights, since that
interference had not been in accordance with law. That was all that the case decided. In the
present case, no public authority has yet done anything that is not in accordance with the
law. Rather, the question is whether the court, as the relevant public authority, would or
would not be acting in accordance with law by interfering with Mr Cowie's Article 8 rights
by way of the mechanism of allowing his medical records to be used for the purposes of the
underlying dispute. That resolves itself into the question of whether there is a clear and
accessible legal basis upon which the court might proceed to allow that use. If that basis is
some aspect of the public interest - as it is in the present case, namely the public interest in
the proper administration of justice - that interest must not be too "vague or amorphous", or
else it risks failing to provide the clear and accessible basis necessary (BC v Chief Constable,
per the Lord Justice Clerk at [108]). Having considered this matter in Thorntons Investment
Holdings at [91], I concluded that the elements which fall to be considered in determining
the question of the admissibility of evidence at common law are sufficiently clear to enable
a suitably-experienced legal practitioner to assess and advise a client who requires to deal
with the question what the likely outcome may be, or at least how likely any particular
outcome is. Neither party in the present case sought to persuade me to reconsider that
conclusion, to which I adhere. The requirement of Article 8(2) that the court's interference
with the Article 8 right in issue must be in accordance with law is, accordingly, satisfied.
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[107]
Turning to the other conditions imposed by Article 8(2), any interference with
Mr Cowie's Article 8 rights requires to be necessary for one of the purposes set out there.
In this case, that the interference is necessary, and fair, for the protection of the rights and
freedoms of others, namely Vitality, emerges clearly from the balancing exercise carried out
at common law, as already set out.
[108]
Counsel for Mrs Cowie submitted that it was implicit in Article 8(2) that any
interference with Mr Cowie's Article 8 rights should be proportionate in the sense described
in Bank Mellat, summarised in Christian Institute v Lord Advocate [2016] UKSC 51, 2017
"It is now the standard approach of this court to address the following
four questions when it considers the question of proportionality: (i) whether
the objective is sufficiently important to justify the limitation of a protected right;
(ii) whether the measure is rationally connected to the objective; (iii) whether a
less intrusive measure could have been used without unacceptably compromising
the achievement of the objective; and (iv) whether, balancing the severity of the
measure's effects on the rights of the persons to whom it applies against the
importance of the objective, to the extent that the measure will contribute to its
achievement, the former outweighs the latter (ie whether the impact of the rights
infringement is disproportionate to the likely benefit of the impugned measure)."
[109]
Assuming that to be so, I did not understand counsel to dispute that the objective of
protecting the rights and freedoms of others in the context of civil litigation was sufficiently
important, in principle at least, to justify the proposed limitation on Mr Cowie's Article 8
rights. In any event, I so hold. As to whether that proposed limitation is rationally
connected to that objective, if it may reasonably be expected to contribute towards the
realisation of the objective at which it is directed, it will satisfy that requirement; Bank Mellat
per Lord Reed at [92] and [116], and the cases cited there. Again, I did not understand it to
be in dispute that allowing use of the medical records in the substantive dispute was
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rationally connected in the necessary sense to the vindication of the public interest in the just
and accurate resolution of the civil proceedings in question.
[110]
Rather, counsel submitted in relation to the third element of the Bank Mellat
proportionality test that a less intrusive measure could have been used without
unacceptably compromising the achievement of the objective, in that the court could require
medical records to have been recovered by way of commission and diligence before
permitting their use in litigation. However, for the reasons already set out, I do not consider
that the availability of that route for the recovery and use of medical records touches upon
the question of proportionality which is actually in issue in the present case. The question
which faces the court is whether it is proportionate to allow the use of unlawfully-recovered
material in the substantive dispute. It is not the more general and abstract question of under
what circumstances confidential medical records should be admissible in evidence in civil
litigation. If that were the question, then one might argue that even commission and
diligence could be seen as an unduly intrusive mode of interfering with Article 8 rights in
the confidentiality of medical records, and that some test centring on the reasonableness
of any refusal to consent to such use on the part of the person claiming those rights would
be more appropriate. Addressing the correct question, however, the confiding to the
independent court of the power to decide the issue in the context of the nuanced and
sensitive common law test is a reasonable expedient to deal with the problem and no less
intrusive measure which would not unacceptably compromise the achievement of the
objective suggests itself.
[111]
The fourth and final question to be asked is, read short, whether, balancing the
severity of the impact of the interference with the importance of the objective and the extent
to which the interference would contribute to its achievement, the former outweighs the
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latter. This is a perhaps a rather more formal and elaborate way of asking the same question
which falls to be posed at common law. In the present case, the objective of protecting the
rights and freedoms of others in the context of civil litigation is an important one and the
proposed interference will undoubtedly contribute to its achievement. The severity of
the impact of the interference, on the other hand, is much attenuated by the fact, already
canvassed, that the state of Mr Cowie's health was voluntarily put forward by him as
foundational to his' relationship with Vitality, so that there is correspondingly less room
for Mrs Cowie, as representing him, convincingly to maintain that his privacy is greatly
invaded when information about that very matter is to be relevantly used in the
determination of a dispute arising out of that relationship.
[112]
I conclude that the proposed interference in Mr Cowie's Article 8 rights is justified in
terms of Article 8(2).
Disposal
[113]
For the reasons stated, I rule that the medical records in issue shall, subject to
Vitality's relative undertaking already noted, be admissible as evidence in the parties'
underlying dispute. I shall pronounce an interlocutor to that effect and refuse the craves
of the Minute.
