GILLIAN COWIE AGAINST VITALITY CORPORATE SERVICES LTD

Factual and Procedural Background

In November 2015, the Insured obtained a life insurance policy from Company B for £500,000. The Insured died suddenly in October 2016, and the Plaintiff, his widow, made a claim under the policy. Company B obtained medical records from the Insured's general practitioner (GP) and declined the claim on the basis of alleged non-disclosure of material medical history by the Insured at the time of application. The Plaintiff initiated legal proceedings seeking payment of the sum insured. A preliminary issue arose regarding whether the medical records obtained by Company B could be used as evidence in the proof of the action. Given the complexity, this issue was determined separately through a Minute and Answers process, following a four-day proof hearing.

Legal Issues Presented

1. Whether the medical records obtained by Company B were lawfully and properly acquired in accordance with the law and relevant confidentiality obligations, including Article 8 of the European Convention on Human Rights (ECHR).
2. Whether the medical records should be admitted as evidence in the substantive proceedings despite being obtained without proper consent.
3. The interpretation of the scope and nature of consent given by the Plaintiff via the Medical Authority Certificate and the extent of the request made to the GP for medical information.
4. The application of common law principles and statutory provisions governing confidentiality, admissibility of evidence, and consumer insurance contracts in relation to the disputed medical records.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff contended that Company B misled the GP by representing that it sought a targeted medical report, whereas it actually requested full medical records, which exceeded the scope of consent given.
• The Plaintiff argued that she did not provide informed consent for the acquisition of the full medical records, and that the manner in which Company B obtained the records breached common law confidentiality and Article 8 ECHR rights.
• It was submitted that the medical records were confidential and should only be recoverable with court sanction, which Company B failed to obtain despite multiple unsuccessful attempts via commission and diligence.
• The Plaintiff relied on authorities establishing the continuing duty of confidentiality after death and emphasized the strict scrutiny required before confidential medical information can be disclosed or used.
• The Plaintiff argued that Company B’s conduct in relying on medical records obtained improperly was unfair, and the records should be excluded from evidence to prevent Company B profiting from its own wrongdoing.
• The Plaintiff submitted that the request to the GP was ambiguous and should be interpreted in the most favorable way to her as a consumer under the Consumer Rights Act 2015, limiting the scope of the request.
• The Plaintiff cited the Financial Services Ombudsman decision against an insurer for unfairly relying on irrelevant medical records obtained beyond the scope of consent.

Company B's Arguments

• Company B asserted that the Plaintiff provided valid consent via the Medical Authority Certificate for a targeted GP report relating to the Insured’s medical history relevant to the claim.
• It was submitted that the request to the GP for medical records "relating to or contributing to the cause of death" within a five-year period was a targeted request consistent with industry codes and guidance (ABI Code and BMA/ABI joint guidance).
• Company B argued that the GP acted within his professional judgment in providing the records and that the distinction between a medical report and records was one of form rather than substance.
• Company B contended that medical records are not privileged evidence and that the discovery of truth in litigation overrides confidentiality, particularly where the health of the Insured was put in issue by the Plaintiff.
• It was argued that the medical records were highly relevant and necessary for Company B to establish a qualifying misrepresentation under the Consumer Insurance (Disclosure and Representations) Act 2012, and exclusion would risk an unjust outcome.
• Company B acknowledged the confidentiality of the records and Article 8 rights but submitted that their admission was proportionate and justified in the interests of justice and the rights of the insurer.
• The manner in which the records were obtained did not involve dishonesty or deliberate wrongdoing, and any irregularity was minor or accidental.
• Company B maintained that the records would likely have been recoverable by lawful means (commission and diligence) and that the absence of such recovery attempts should not bar their admissibility.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Boyle v Glasgow Royal Infirmary (1969 SC 72)	Medical records are confidential and not subject to random inspection; recovery requires court sanction.	Confirmed the strong confidentiality of medical records and the necessity of court oversight for their recovery.
BC v Chief Constable, Police Scotland [2020] CSIH 61	Recognition of obligation of confidence and effect of Articles 8 and 10 ECHR on confidentiality law in Scotland.	Supported the view that confidentiality obligations persist post-mortem and are ECHR compliant.
Lord Advocate v Scotsman Publications Ltd (1989 SC (HL) 122)	Equivalence of Scots and English law regarding confidentiality obligations.	Supported application of confidentiality principles equally in Scots and English law contexts.
MK v Ukraine [2022] ECtHR 24867/13	Disclosure of medical information without consent not "in accordance with law" breaches Article 8.	Distinguished as involving unlawful disclosure by a public authority; court held that unlawful acquisition of records does not preclude lawful use by court.
LL v France (2010) 50 EHRR 32	Use of medical records obtained without consent must be proportionate and justified under Article 8.	Applied to assess proportionality of admitting medical records in litigation; used to weigh interests in current case.
D v National Society for the Prevention of Cruelty to Children [1978] AC 171	Confidential information is not privileged if disclosure assists the court in ascertaining relevant facts.	Supported the principle that doctor-patient confidentiality does not prevent evidence disclosure when justice requires.
Bank Mellat v Her Majesty's Treasury [2013] UKSC 38	Framework for proportionality analysis under Article 8 ECHR.	Applied to assess whether interference with Article 8 rights was justified and proportionate in admitting evidence.
Thorntons Investment Holdings v Matheson [2023] CSOH 85	Application of common law and Article 8 tests to admissibility of irregularly obtained evidence.	Guided the court in balancing confidentiality, fairness, and public interest in admitting evidence.
Kelly v Kelly 1946 SLT 208; Higgins v Burton 1968 SLT (Notes) 52	Doctor-patient confidentiality does not prevent recovery of medical records in litigation.	Supported the admissibility of medical records despite confidentiality claims.
CC Construction 22 Ltd v Mincione [2021] EWHC 2502	Interpretation of consumer contract terms under Consumer Rights Act 2015.	Applied to reject Plaintiff’s argument for restrictive interpretation of medical records request letter.

Court's Reasoning and Analysis

The court began by establishing that the Medical Authority Certificate signed by the Plaintiff authorized Company B to obtain a targeted GP report, as represented to her. However, Company B used this consent to request medical records from the GP that were broader in scope than the Plaintiff had consented to, including records beyond the specified five-year period and unrelated to the cause of death.

The GP, Dr Mclennan, provided all or virtually all of the Insured’s medical records held by his practice, exceeding the targeted request. The court distinguished between a medical report (a filtered, narrative assessment) and medical records (raw data), concluding that there was a material difference and that the Plaintiff had not consented to the latter.

The court found that the medical records were obtained unlawfully and not in accordance with law, as required by Article 8 ECHR, because there was no informed consent for the broader request and disclosure. The court rejected the Plaintiff's contention that the Consumer Rights Act 2015 applied to the letter to the GP, holding that the letter was not a consumer notice and that the wording was clear and unambiguous.

Despite the unlawful acquisition, the court considered whether the records should be admitted in evidence. It applied the common law discretion balancing the fairness of admitting evidence against the manner in which it was obtained and the public and private interests in confidentiality. The court acknowledged the strong confidentiality interests but emphasized that the Insured voluntarily placed his health in issue by applying for insurance and making health declarations.

The court held that the medical records were highly relevant and necessary for Company B to establish its defence of qualifying misrepresentation under the Consumer Insurance (Disclosure and Representations) Act 2012. Excluding the records would risk an unjust outcome by depriving Company B of essential evidence.

The court further applied the Article 8(2) proportionality test, considering whether the interference with the Insured’s rights was justified and proportionate. It concluded that the interference was justified by the legitimate aim of protecting the rights of others (Company B) in the context of civil litigation and was proportionate given the significance of the evidence and the context of the Insured’s voluntary disclosure of health information.

The court rejected the argument that the records should only be admissible if obtained by lawful means such as commission and diligence, holding that the court’s discretion and proportionality analysis governed admissibility. The fact that lawful routes existed but were not pursued did not preclude admission.

Regarding the credibility of witnesses, the court accepted the Plaintiff’s and Company B’s witnesses as fundamentally honest but expressed reservations about parts of the GP’s evidence, particularly where it conflicted with other evidence or was reconstructed from memory. The court rejected objections to the admissibility of Company B’s witness evidence on industry practice, noting that such evidence was factual rather than expert.

Holding and Implications

The court ruled that the medical records in issue, although obtained unlawfully and without fully informed consent, shall be admissible as evidence in the parties’ underlying dispute, subject to Company B’s undertaking not to use certain material identified by the GP as outside the scope of the original request.

The direct effect of this decision is that Company B may rely on the medical records in defending against the Plaintiff’s claim under the insurance policy. The court emphasized that this ruling does not establish a precedent permitting unlawful acquisition of confidential medical records but reflects a nuanced balancing of confidentiality rights, evidential necessity, and the administration of justice in the circumstances of this case.