Disclosure in serious medical treatment cases

In a recent court case where the judgment was delivered in private, an applicant Trust had approached the court to decide whether it was lawful, and in the best interests of a child with rare and serious genetic health condition, to discontinue the provision of life sustaining treatment.

In a separate judgment (Birmingham Women's and Children's Hospital NHS Foundation Trust v KB and others [2025] EWHC 1292 (Fam)), dated 12 May 2025, Mrs Justice Morgan addressed the issue of insufficient disclosure that had arisen during the course of those court proceedings.

Despite the applicant Trust being given ample time to produce the material, representatives for the parents had raised concerns that medical records were missing from the disclosure (and were not produced after requests had been made for them to do so). Copies of documents provided were said to be of such poor quality that some were unreadable. Multi-disciplinary team meetings had not been minuted in writing, and the material missing was said to be “the sort of primary source material core to assessment of burdens and benefits – such as interaction records” (paragraph 3 of the judgment).

Over 800 pages of additional medical documents were produced by the Trust just two working days before a case management hearing. Yet more records were later produced after the court sought assurance from senior staff at the Trust that there were no more records to disclose. “The net effect of the position”, Judge Mason noted, “was that within the 7 days preceding the scheduled start date of the final hearing something approaching 3000 pages of material – much of it previously said not to exist and/or not to be available – had been produced by the Trust.”

The disclosure produced by the Trust was, of its own admission, “difficult to follow” and lacked indexing and cross-referencing, making it very difficult for the other parties to work from – especially with such little time before the hearing.

The court considered adjourning the final hearing due to these issues. However, due to the serious nature of the decision to be made, and the fact that further delay may reduce the options available to act in the child’s best interests, the court was ultimately able to make a decision with only a short delay of only two days.

Comment

This judgment acts as a reminder of the obligation that a Trust (who is usually the applicant in serious medical treatment cases) has to provide the court and other parties with the necessary material to allow them to properly assess the evidence and reach a decision. This should include documents that may lie outside the medical records but can give the court a holistic indication of the individual’s quality of life (for example, play therapists' notes). Disclosure should be considered at an early stage in proceedings, and the documents provided should be easy to read and reference and produced with sufficient time to avoid unnecessary additional pressure being placed on the court and other parties.

At paragraph 21 of the judgment, Mrs Justice Morgan provided a list of practical steps that the applicant should take in serious medical treatment cases to ensure that disclosure is provided in full, and in good time. These recommendations are summarised below:

1. An index should be compiled by the applicant at an early stage of the records held by the Trust. Alongside clinical and medical records, this should also include any therapeutic records. There should be a senior person allocated to ensure that all categories of material have been added.
   
   
2. A person should be allocated to ensure that the index is kept up to date.
   
   
3. The index should indicate where records have been duplicated or are stored in more than one location.
   
   
4. The index should be made available to the court at the first hearing of the application.
   
   
5. Disclosure should be paginated and indexed in a format that can be easily updated later in proceedings.
   
   
6. Any documents that have been scanned from a paper copy should be inspected to ensure that they are readable and of adequate quality before they are added to the disclosure.
   
   
7. To minimise the risk of human error, a senior person should be identified who will have responsibility for checking that disclosure is collated and sent out in good time
   
   
8. Where it is reasonably possible to do so, disclosure should be produced in a text-searchable format. This should be discussed by the parties at the first hearing.

If you would like to discuss any of the issues raised here, do get in touch. We have a friendly and expert mental capacity team who would be happy to support.