How can the police obtain a suspect’s medical records pre-charge?  Pre-charge it is not possible to obtain a witness summons under s.2 of the Criminal Procedure (Attendance of Witnesses) Act 1965.

Can a Production Order under Sch 1 para 4 of Police and Criminal Evidence Act 1984 ('PACE') be applied for instead?  The answer seems to be “No”.

Medical records are “excluded material” under section 11 and 12 of PACE.

Schedule 1 paragraph 1 of PACE provides that a circuit judge may make a Production Order under paragraph 4 if one of the “access conditions” is met. Sch 1 Paragraph 3 provides:

 The second set of access conditions is fulfilled if—

 (a)    there are reasonable grounds for believing that there is  material which consists of or includes excluded material or special procedure material on premises specified in the application or on premises occupied or controlled by a person specified in the application (including all such premises on which there are reasonable grounds for believing that there is such material as it is reasonably practicable so to specify);

 (b)  but for section 9(2) above a search of such premises for that material could have been authorised by the issue of a warrant to a constable under an enactment other than this Schedule; and

 (c) the issue of such a warrant would have been appropriate.

Section 9 of PACE provides:

(1)    A constable may obtain access to excluded material or special procedure material for the purposes of a criminal investigation by making an application under Schedule 1 below and in accordance with that Schedule.

(2)    Any Act (including a local Act) passed before this Act under which a search of premises for the purposes of a criminal investigation could be authorised by the issue of a warrant to a constable shall cease to have effect so far as it relates to the authorisation of searches—

(b) for excluded material…

Given the above, the position appears to be that a Production Order in respect of excluded material can only be applied for if there was a statute which (pre-PACE) would have authorized the obtaining under warrant of the material in question.

There are some such statutes in existence, but they are rare and somewhat esoteric and include (for example) the Biological Weapons Act 1974 and Wildlife and Countryside Act 1981.  There is no pre-PACE statute which enabled a warrant to be obtained for access to medical records.

The point was argued in the Divisional Court in R v Central Criminal Court ex parte Brown (1992) 30 July; Times, September 7, 1992, in which the police made an application for a murder suspect’s medical records from the hospital where he was being treated for injuries received during a fight in which the victim died.  The suspect applied to the Divisional Court for the Order to be set aside.

It was submitted on behalf of the Applicant (suspect), that prior to the enactment of PACE there was no statute that would have authorised the issue of a warrant to a constable to seize medical records.  This point was in fact conceded by counsel on behalf of the CPS.  The Divisional Court described this concession as properly made and set aside the Production Order.

In R v Cardiff Crown Court ex parte Kellam (1993) 7 April; Times, May 3, 1993 the Divisional Court considered the scope of the definition of “excluded material” as regards of documentary records relating to a person’s physical or mental health.  In that case, the police obtained a Production Order from the Crown Court in respect of records from a secure mental institution regarding whether a suspect in-patient was on day release at the time of the murder.  The issue in that case was whether the definition of excluded material extended to the documents sought, it being accepted that if it did, then there was no power to order the Production Order.  The Divisional Court held that the records sought were excluded material and therefore set the Production Order aside.

Therefore the position appears to be that in respect of medical records, the access condition in paragraph 3(b) of Schedule 1 cannot be fulfilled and it is not therefore possible to apply for a Production Order for such records.

Note that Archbold 15-65 is unhelpfully worded in that it refers to the ex parte Brown case as relating to an application in respect of a “medical report”. This is derived from an incorrect headnote in the Times Law Report.  It is apparent from reading the official transcript that this is incorrect.

Of more assistance to hard pressed Police Officers are the Notes for Guidance attached to the “Form of Application for a Production Order: Police and Criminal Evidence Act 1984 Schedule 1 – Second Set of Access Conditions.”  These guidance notes set out the law correctly, give examples of the pre-PACE search warrant powers which did exist, and conclude, “Applications under PACE Schedule 1 for the production of excluded material therefore are likely to be rare.” 

The MDU is alive to this issue and will be sending out advice to its members regarding it.  It is also worth pointing out that Sch 1 para 16 of PACE provides that “the costs of any application under this Schedule and of anything said or done in pursuance of an order under it shall be in the discretion of the Judge”.  Therefore plainly there is a costs risk attached should an inappropriate application be made for a Production Order.