Articles

THE MEDICO-LEGAL ASPECTS OF MEDICAL REPORTS

THE PURPOSE OF A MEDICAL REPORT

A doctor must be clear about the purpose for which a medical report is sought. There have been cases of people who saw as suspicious and evasive a doctor's response seeking disclosure of the purpose. It is often helpful to explain to the person seeking the report that the form and content of the report would depend on the purpose of the report. If the purpose is not disclosed, a convenient course to take is to give a chronological, factual account of the clinical events and without expressing comment or speculation.

Some examples of a purpose are: -

1. to ascertain fitness for an activity or for employment or continued employment;
2. to support a claim for a pension or for other benefits, for instance, under an insurance policy;
3. to support a personal injury claim in court;
4. to establish or exclude the defence of insanity in a criminal case;
5. to refer a case to another doctor;
6. to determine the needs of a child in custody proceedings;
7. to give an expert opinion in a medical negligence case; and
8. to estimate the age of a person in a court case (in not every case would there be reliable evidence from other sources of a person’s date of birth).

WHAT IS TO BE INCLUDED?

Once the purpose is clear, the doctor would have to decide on what points need to be included in the report, such as: -

1. the patient’s complaint or reason for seeing the doctor;
2. the patient’s history;
3. the investigations and procedures undertaken;
4. the doctor’s findings;
5. the diagnosis;
6. the treatment and management provided;
7. the advice given; and
8. the prognosis.

WHO WANTS THE REPORT?

It is important to be clear as to whether the person asking for the report is entitled to the report. A useful guide to the question of whether there is a right to receive a report, especially on the part of a person who seeks a medical report regarding another person, is to find out whether there is a legitimate purpose in seeking the report. Some examples have been given above. There are essential functions of government and business in which there can arise a need for a medical report on a patient to be given upon the request of or for use by a third person.

A doctor must always keep in mind the duty of confidentiality to the patient. As a general rule, the consent of the patient is necessary for the report to be disclosed to a third party.

As a general rule, the police cannot require a doctor to write a medical report on a patient, whether that patient is an accused person, an assault victim or a complainant. However, it would be helpful to give a report so that it becomes part of the information given by the doctor to the police.

What the police can do under the law when conducting investigations is to take away the doctor’s records on a patient and to take a statement from the doctor about a patient. However, they cannot compel a doctor to prepare a medical report on the patient for delivery to the police.  The Criminal Procedure Code contains wide provisions enabling the police, for the purpose of a criminal investigation, to take away documents and to question people and to take statements from them.  A doctor cannot plead confidentiality and withhold a patient’s medical records (including medical reports already on file) in such a situation.

In the case of a child under the age of majority who is not in a position to decide, consent may properly be given by the child’s parent or guardian.  The Age of Majority Act 1971 provides that the age of majority is eighteen years.  It is not clear in this country as to whether a child under eighteen years of age, who is of sufficient understanding and intelligence (therefore, a mature minor, as understood in various other countries), may lawfully give or withhold consent to the disclosure of a medical report, against the wishes of the child’s parents or guardian. 

In the case of a person who is mentally disordered and is thereby incapable of managing himself and his affairs, consent may be given by the committee of the person and of the estate of the mentally disordered person.  Clearly, it is not in every case that a mentally disordered person is “incapable of managing himself and his affairs.”

A mentally disordered person may still retain sufficient capacity to give or withhold consent in a particular case.

In the case of a deceased person, the proper person to give consent is the duly-appointed personal representative of the estate of the person.  Being a close relative of the deceased is by itself not enough under the law to justify disclosure to the relative. However, when there has been disclosure of a legitimate purpose, for example, an application for pension or insurance benefits or an intended claim in court for personal injuries, ordinarily, there should be no legal basis for not entertaining a request for the report. 

The following illustrations found in the Specific Relief Act 1950 make it clear that the doctor owes a duty of confidentiality to the patient and also that that duty continues after the death of the patient: -

Section 52

Illustration (i)

A is B’s medical adviser, he demands money of B which B declines to pay.  A then threatens to make known the effect of B’s communications to him as a patient.  This is contrary to A’s duty, and B may sue for an injunction to restrain him from so doing.

Illustration (v)

A, a very eminent man, writes letters on family topics to B.  After the death of A and B, C, who is B’s residuary legatee, proposes to make money by publishing A’s letters.  D, who is A’s executor, has a property in the letters, and may sue for an injunction to restrain C from publishing them.

Section 53

Illustration (f)

A, being B’s medical adviser, threatens to publish B’s written communications with him, showing that B has led an immoral life.  B may obtain an injunction to restrain the publication.

A doctor must be careful about disclosing confidential information by way of a medical report in some sensitive situations (but disclosure can still be necessary), e.g. matrimonial disputes; child custody cases; pregnancy; venereal disease; employment disputes; disputed wills and other documents; mental illness; child abuse and neglect; and sexual offences.  In such cases, the doctor must be satisfied, before disclosing the information, as to whether the person commissioning the report has a right to, or at least a need to know, the information.

What has been said so far relates to the stage before a doctor gives evidence in court.  As a witness in court, a doctor cannot claim privilege and refuse to disclose confidential information relating to a patient acquired by virtue of the doctor-patient relationship.  Therefore, if a doctor has with him or her a medical report on the patient, which is relevant to the case before the court, the court may properly compel the doctor to disclose the report to the court.

MEDICAL EXAMINATION

As a general rule, a patient may not be examined without his or her consent for the purpose of a medical report.

An Exception

In the case of a person who is accused of a crime and is suspected to be of unsound mind, the court or the Public Prosecutor has the power to order such a person to be sent for observation by a doctor (see section 342 of the Criminal Procedure Code). 

Refusal to Undergo Medical Examination

A suspected drug dependant may be ordered by a magistrate under section 5 of the Drug Dependants (Treatment and Rehabilitation) Act 1983 to undergo a medical examination and medical treatment.  It is a criminal offence to refuse to undergo the examination or treatment to be provided by the doctor.

Under section 34 of the Education Act 1961, if a parent or guardian of a school-going child fails without reasonable excuse to arrange for the child to be medically-examined when required to by an authorised education officer, such parent or guardian would be guilty of a criminal offence.

In these cases, while a person may be punished for not giving consent to a medical examination, it is not the law that the person may be examined without consent.  The unjustified refusal to give consent gives rise to a criminal offence.  The court cannot order that the person be examined without that person’s consent.

Under sections 45C and 45G of the Road Transport Act 1987, a medical practitioner may take a sample of blood from a suspected drunk driver only with that person’s consent for the purpose of a police investigation.

In a criminal case, to have the accused person examined without his or her consent for the purpose of obtaining evidence to be produced in court against such person would be an infringement of that person’s right against self-incrimination.  A medical examination undertaken without consent would be an assault and therefore the court may not want to receive evidence obtained in such a manner.  These points were made clear in a number of decided Indian cases.

The court may order that the plaintiff in a personal injury action be examined by a medical expert nominated by another party to the action.  If the plaintiff refuses to undergo the examination, the court cannot compel the plaintiff to undergo the examination.  In such a situation, the court may or order that the action be stayed until the plaintiff undergoes the examination or, eventually, if the plaintiff still refuses to be examined, even strike out the action.

THE CONTENTS OF THE REPORT

As mentioned earlier, the guiding point should be the purpose of the report.

Another point to keep in mind is the intended reader. For example, if the intended reader is a doctor as well, the form and content of the report may properly contain more jargon than one which is to be addressed to a lay person. 

For legal reasons, a doctor must exercise reasonable care and skill in writing the report.  It is professional negligence for a doctor to fail to exercise reasonable care and skill when preparing a medical report.  For example, if in a personal injury case, the plaintiff’s medical expert failed to exercise reasonable care and skill in detailing in the medical report the cause of the plaintiff’s injury and the extent of the injury with the result that what would otherwise have been as successful claim got dismissed, the expert would be liable to the patient for the loss and damage suffered by the plaintiff as a result of losing the case.

Where a lawyer acting for a party seeks a medico-legal report, a doctor, may for various purposes, confer with the lawyer about the case before preparing the report (see Powers, Harris and Barton on Clinical Negligence 4th  edn., paragraphs 14-60 to 14-67), for instance, so as to understand the legal issues involved, the purpose of the report, or to clear up doubts or to correct errors and omissions.  However, a doctor must not let others dictate the contents of a report so as to state facts not supported by the evidence available to the doctor or so as to reflect an opinion not held by the doctor.  The doctor must be honest and unbiased.

A doctor must be careful not to wilfully mislead the court.  To do so may in some cases amount to perjury or contempt of court, and in some others infamous conduct in a professional respect.  In any event, a doctor preparing a medical report must take care to ensure that the contents of the report are not false and do not mislead the reader, whether a judge or someone else.  In law, a doctor can be held liable for the loss and damage suffered by another person as a result of such a report.

Also, sometimes doctors may have to write in their medical reports statements which are defamatory of others.  To publish without lawful cause or excuse a defamatory statement of another is a criminal offence and may also attract civil liability, for instance by way of an award of damages against the publisher.

For example, where a doctor, in submitting to an employer a medical report following a pre-employment medical examination of a single Muslim female job applicant, says in error that the applicant is pregnant (because of a mix-up in the medical records), such statement would clearly be defamatory of the applicant and may lead to a claim against the doctor or a complaint to the Malaysian Medical Council.

There may be various defences available in a particular case of alleged defamation, e.g. justification and qualified privilege.  A detailed discussion of the subject is beyond the scope of this article.  Instead, it is proposed to give some basic advice so that the risk of legal problems can be minimised.

Care must be taken in setting out statements in a medical report which may cause offence to others.  The relevant facts as found or reported to the doctor must be stated carefully.  The medical report is not the place for insults or sarcasm.  The doctor must also take care to ensure that the report is disclosed only to someone who has a right to see the report, or at least a legal, moral or social need to see the report, in which case the publication of the defamatory matter may well be protected by the defence of qualified privilege.  The doctor must not volunteer unnecessary information to the recipient unless the doctor is under a legal, social or moral duty to do so.

OPINIONS

Often, a doctor’s opinion in a medico-legal case is relevant.  Also relevant would be the doctor’s grounds for the opinion.  When stating an opinion, the doctor must do so on the available facts.  Sometimes, it would be useful to refer in the report to the literature on the subject when stating the opinion.  This is because the opinion should be supported by the doctor’s scientific and technical knowledge of the subject, for which support from the relevant literature is sometimes useful.

PRIVILEGE

Medical reports prepared for the purpose of litigation are generally privileged from disclosure.  So when a doctor sends such a report to a party to the litigation who has commissioned it, the report cannot be disclosed to anyone else or the court without that party’s consent.

EXPERTS’ REPORTS FOR USE IN COURT

Order 40A of the Rules of Court 2012 provides in detail for the giving, in civil cases, of expert evidence, including, unless the court otherwise directs, by way of a report, which report must be tendered to the court.  Amongst the matters to be included in the report are: -

1. details of the expert’s qualifications;
2. details of any literature or other material relied on by the expert in making the report;
3. a statement setting out the issues which the expert has been asked to consider and the basis upon which the evidence was given;
4. the name and qualifications of the person who carried out any test or experiment which the expert has used for the report and a statement as to whether or not such test or experiment has been carried out under the expert’s supervision;
5. where there is a range of opinion on the matters dealt with in the report –
   (i) a summary of the range of opinion; and
   (ii)reasons for his or her opinion;
6. a summary of the conclusions reached;
7. a statement of belief of the correctness of the expert’s opinion; and
8. a statement that the expert understands that in giving his or her report, his or her overriding duty is to the court and that he or she complies with that duty.

There is provision in Order 40A for the court to allow questions in writing to be put by a party to an expert instructed by another party.  If in the opinion of the court an expert does not answer satisfactorily within the time provided a question put by the other party, the court may order: -

1. that the party who instructed the expert may not rely on the evidence of that expert;
2. that the party who instructed the expert may not recover the costs of that expert from any other party; or
3. that the expert is to answer or provide a further and better answer to the question, as the case may be.

The court may also direct that the experts to the respective parties hold a discussion so as to: -

1. identify the issues in the proceedings; and
2. where possible, reach an agreement on an issue.

The court may also direct the experts to discuss a certain issue.  The experts shall following the discussion to prepare a statement showing: -

1. the issues on which they agree; and
2. the issues on which they disagree and a summary of their reasons for disagreeing.

There are no comparable Rules of Court for medical reports in criminal cases. A doctor should take legal advice if necessary regarding medical reports in such cases. Such advice should cover what the legal issues in a particular case are. For example, in a murder case, the court would need to find the cause of death and would need to take evidence on it. When writing a report, a doctor must have regard for the principles of good medical practice and also respect for the truth. It has been said that the court is the sanctuary of truth.

SOME PRACTICAL POINTS

1. Date and sign the report.
2. Typewrite it.
3. Use proper notepaper.
4. Preserve the documents relied on when writing the report.
5. Be accurate about the date of the report, dates of examination and treatment, etc.
6. State the facts accurately.
7. Avoid jargon and abbreviations which may confuse the intended reader.
8. Avoid loose language.
9. Avoid making assumptions.
10. Avoid comment and speculation.
11. When giving an opinion upon invitation, be ready with the grounds for the opinion.
12. Use courteous language.
13. Ensure that the report is addressed to and goes to the right person.

CONCLUSION

The doctor should keep some key words and phrases in mind when preparing a medical report, namely: -

1. purpose;
2. consent;
3. confidentiality;
4. care and skill;
5. facts;
6. relevancy of facts;
7. findings;
8. grounds for an opinion; and
9. courtesy. 

Above all, a doctor must remember that his or her report might get read in court one day, perhaps even many years later.  The time and trouble taken to write a satisfactory medical report would often save the doctor from medico-legal and ethical problems and embarrassment in the future.  A doctor’s poorly-written medical report is one of the surest ways of undermining the doctor’s credibility.