Evidence Gathering

[CameronBennett80]

Hello,

My brother has been arrested on historic sexual abuse charges dating back 10 years.

He has been questioned and released on bail pending further investigations. My brother is innocent, we known that these allegations are being made up to get "revenge" on my family over a bitter dispute with the accusers family many years ago. He has explained this to the police but they are still going to carry out a full investigation, which I appreciate.

My question is this:

During the investigation, what is the likelihood that my brothers medical records are checked. We both come from an abusive background. We were both sexual abused by our late father and these memories have only recently come back to haunt my brother. He visited his GP in 2012 to talk about those distressing times, which were dead and gone, but in the light of recent media coverage of historic abuse stories, he has been brought back to the front of his mind. He received treatment from a psychologist, but all this history will have been recorded.

He is now scared that if the police want access to his GP records, they will put two and two together and assume he did it because he came from an abusive background.

Any advice will be much appreciated.

Thanks

Daisy

[FredPuli43]

None. First of all the police can't go delving into medical records just like that. Second, even if they could, they couldn't use the evidence in court, and any interview based on it would be excluded. That's because it doesn't prove anything. The CPS will proceed, or not, on the evidence of the complainant and such other direct or circumstantial evidence witnesses can provide.

[FredPuli43]

"Just like that", above, sounds a bit glib. The reality is that medical records cannot be seized for use in evidence even on the order of a judge; they never could be, though we now have a statute saying so, and they come under the heading of 'excluded material', that is material such as privileged or highly confidential material, and are not therefore admissible. And the courts will not permit such material to be admitted slyly or deviously such as by asking questions aimed at getting answers which reveal the information.

[CameronBennett80]

Thank you so much, what a really helpful answer.

Much appreciated.

[stocktonlad]

FredPuli43, that's a very good answer. Do have you had experience in this area?

I know someone who had a similar situation. If investigated, her medical record would reveal she suffered from severe depression which the police may have used wrongly against here. Luckily, never got that far, but it did cause her a lot of unnecessary stress.

[FredPuli43]

stocktonlad, I do have some experience in the criminal courts but ,more importantly, I have the latest, 2014, edition of Archbold : Criminal Pleading, Evidence and Practice, "the criminal law bible". You don't think I carry every section and Act, word for word, in my head ,do you ? :)

[stocktonlad]

FredPuli43, keep up the good work :-)

Cameron, hope it turns out fine!!

[CameronBennett80]

FredPuli43 - My brother says thanks for the advice and information. He asks, so are his medical records are out of bounds

Thanks

[FredPuli43]

Yes, Cameron, they are, not that they'd be relevant if they weren't.

[CameronBennett80]

Thank you so much!! :-)

[FredPuli43]

i said 'not that they'd be relevant, because someone might want to know what would happen if the evidence was not in medical records. Suppose that the prosecution had ordinary, non-medical, witnesses who could say that they witnessed the same events, the abuse, or that the defendant had told them of the abuse? That evidence would avoid the ban on medical records but it would still be inadmissible. It does not go to prove anything which is relevant to the question of guilt or innocence. It is purely prejudicial and of no probative value.

[CameronBennett80]

Hi FredPuli43,

That last comment sounds very impressive, but I'm afraid you've lost me a little bit. Please could you explain again in layman's terms. Thank you so much for your time so far. :-)

[stocktonlad]

Does this mean, in theory, that you can say anything to your GP, and providing they aren't concerned by what they hear or feel the need to breach confidentiality, then those consultations would be inadmissible regardless of what's been said.

[FredPuli43]

The medical records cannot be used. If someone says what they contain, that evidence can't be used either.

You mention abuse. If some witness had seen the abuse and was called to court to say that they had seen it, that evidence would not be allowed either. Evidence can only be heard if it proves,is part of the proof of, something which has to be proved to make the accused person guilty. In my view, that evidence does not prove, nor tend to prove, what is to be proved here. The same applies if the witness heard the accused describing the abuse though did not witness it themselves.

Conversations between doctor and patient, if they are about the patient's medical condition or treatment etc are not allowed as evidence unless the patient wants them in evidence.

[FredPuli43]

Perhaps I should add that, sometimes, evidence which does tend to prove guilt is excluded, not allowed to be given. That happens when its value in proving something is not great and the judge thinks that the jury would be unduly prejudiced against the accused person if the evidence was given,

[CameronBennett80]

I understand fully now. Thanks

[CameronBennett80]

Sorry Fred, my brother wants to add a bit more information to the original post. I know from what you've said it shouldn't make any difference, so apologies again for going over old ground.

During the consultation with his GP, and because of the nature of the discussions, his GP warned him that confidentially might have to broken because of the subject matter, however it wasn't and after receiving treatment for depression, the GP informed him no further action was necessary.

As I've already said, he is worried that this information, although out of bounds, would harm is case.

[tonywiltshire]

CBt80, Fred is absolutely correct in that it cannot be used and if a request was made to a GP it should be rejected as confidentiality is vital.

[CameronBennett80]

Does a GP's opinion and/or action count for anything when treating a patient, if the police/court where to ever get hold of the records.

[woofgang]

Cameron, I can answer the bit about the warning the GP gave about the possible need to breach confidentiality because I used to work in the NHS under similar rules. If a patient tells a medical worker something that indicates that a serious crime is happening now, the NHS employee must take action even if it means breaching confidentiality. The one I was involved in was a case where a staff member had visited a house with children in it and found a loaded shotgun lying around.
The GP was doing what we are trained to do which was to make your bro aware of the potential for the conversation to go somewhere where the GP would have to take action regardless of confidentiality.... for instance if your bro had mentioned that a friend or contact of your late father was still abusing children. Its extremely rare for this to happen.