FD24P00133 - [2025] EWHC 1292 (Fam)

The solicitor with conduct for the parents has filed and served a statement exhibiting a Chronology of disclosure setting out in detail the difficulties from the first request for medical records (on 14^th May 2024) following her instruction by the parents, through to correspondence between their leading counsel and Counsel for the Trust on 19^th November 2024 by which time there remained queries as to – for example – where MDT decisions were recorded and apparently still missing notes. The outline description at [7] above of the impact of the late and unsatisfactory disclosure is set out in far more detail. It is unnecessary to replicate that here. The statement also highlights however, the impact on the lay parties which included not only disruption to some of the practical arrangements which had been put in place but also had an adverse effect on their perception of, and trust in, the Trust. It is notable that by the time this statement was made, the first of two statements of evidence had already been filed on behalf of the Trust and that the contents of that statement had gone some way to engendering a hope in the parents that their relationship with the Trust, and their child’s treating team, could be rebuilt.

The Trust filed evidence from its Legal Services manager. At the outset of her statement addressing the issues and providing an explanation in relation to disclosure failings, she said this: ‘On behalf of the Trust I offer my sincere apologies for the oversight which occurred in procuring the records. I recognise that this was not what should be expected by the Trust by the Court or the parties.’ . The tone, as well as the contents of the statements filed, is in my view likely to have contributed to the hope of a rebuilding of relationships to which the parents' solicitor made reference.

It is again unnecessary to set out all of the detail in which the statement addressed some of the reasons why in this case, things went so very wrong with disclosure of documents. An explanation of how a combination of paper and electronic records are kept and then filed into volumes for inpatients was accompanied by an acknowledgment that the system is ‘primitive’ and that there is a project underway to roll out fully electronic records by May 2025. Further set out is a helpful explanation of what was disclosed in compliance with orders for rolling disclosure, and what was not. In relation to two volumes of medical records the entirely candid explanation is offered that through human error, medical records copied for disclosure and thought to have been sent to the Trust’s solicitor for onward transmission had not been. It was then discovered, in a search prompted in part by discovery of the human error, that further additional records which had not been properly filed remained undisclosed. That is plainly an unacceptable state of affairs, and the Trust does not suggest otherwise.

Only part of the difficulty in this case has come from the fact that records were not disclosed. A further problem was poor copying of paper records such that the quality was not sufficient. The Trust had outsourced copying of medical records to a third party. Implicit in the acceptance that it was not realised that the records were poorly copied until complaint was made, is that there was no proper check carried out. The Trust indicates that it is putting in place and audit system to ensure oversight.

The final contributor to the especially problematic issues arising from disclosure in this case was the difficulty of following the records even when a) properly disclosed and b) properly copied. It is right to acknowledge that a patient with very voluminous records, as here, is more likely to have records where there is the potential for misfiling and inaccurate maintenance. Whilst I see how it is that that point it made on behalf of the Trust, it is surely as important for clinical reasons as for legal reasons to take care that this does not happen. The Trust outlines steps it will take (including additional staffing) to address this.

Within the statements filed by the parents’ solicitor there is further complaint as to the form of that which was disclosed in that the format meant that it was not possible or at least very difficult to search and navigate within the material. I note that the Trust’s second witness statement makes clear that complaint as to this came very late in the day and that had it come earlier steps to conversion to searchable format could and would have been taken in relation to those parts of the material for which software would permit it. This aspect of the difficulties encountered in respect of disclosure is not one about which I make criticism of the Trust. It is an aspect which may warrant consideration at an earlier stage in future cases.