Medical records of man who died of sudden brain haemorrhage admissible in claim against insurer by widow

About this case:

• Citation:
  [2024] CSOH 65
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Sandison

Gillian Cowie sought payment of £500,000 from Vitality Corporate Services Ltd, trading as Vitality in the UK, which claimed that her husband had misrepresented his medical condition in his application for cover. Given the importance of the evidence to the issue, it was deemed appropriate to determine the issues around it separately in advance of proof by means of a Minute and Answers process.

The case was heard by Lord Sandison in the Outer House of the Court of Session. O’Neill KC and Welsh, advocate, appeared for the minuter and McBrearty KC and R Mitchell, advocate, for the respondent.

Absence of wrongdoing

In October 2016 the minuter’s husband Mark Cowie died suddenly of an intracerebral haemorrhage. He had previously taken out life insurance cover with Vitality in the sum of £500,000 in November 2015. Following her husband’s death, the minuter contacted Vitality, which informed her that a Targeted General Practitioner’s Report would be requested from Mr Cowie’s medical practitioner, which the minuter authorised.

By letter dated 27 February 2017, a representative of Vitality wrote to the minuter stating it was apparent from the information it had received that Mr Cowie had not fully disclosed his medical history when he applied for the policy on 12 November 2015. Had he done so, his application for cover would have been declined. The letter did not identify what were considered to be the relevant qualifying misrepresentations.

At the commencement of the proof diet, senior counsel for the respondent stated that it had become apparent that the GP who provided Mr Cowie’s records now considered that certain material ought not to have been provided to Vitality as it was outwith the scope of its request. Counsel undertook that that particular material would not be used for the purpose of the action, but maintained that the remainder ought to be admitted in evidence in the absence of deliberate wrongdoing.

For the minuter it was submitted that, against the factual background, she had not consented to Vitality seeking or obtaining her husband’s medical records and had misled his GP in representing to him that she had done so. If the medical records could not be shown to have obtained lawfully, any proposed use of them before the courts would be Convention incompatible under section 6 of the Human Rights Act 1998.

Foundational to the relationship

In his decision, Lord Sandison said of the circumstances in which the records were acquired: “The material in fact obtained by Vitality was not a medical report, nor was it in any way targeted or limited by reference to subject-matter or timespan. It was not material which Mrs Cowie had consented to Vitality obtaining, and accordingly was not obtained lawfully by it.”

He continued: “Records are simply a collection of raw data. A person to whom they are provided is able to decide entirely for himself what he finds interesting or useful in them, unconstrained by the limitations which should be inherent in the provision of a report. There is no relevant equivalence between the two forms of request for information.”

Turning to whether they should nonetheless be admitted as evidence, Lord Sandison said: “Had this been a case in which the medical history of Mr Cowie had unexpectedly become highly relevant to some issue in dispute between the parties, and Vitality had obtained records pertaining to that matter unlawfully, I would have had little hesitation in determining that the records were inadmissible. However, the decisive, indeed overwhelming, factor which renders it fair to admit the disputed material despite its confidential nature and the unlawful manner in which it was obtained is the fact that the state of Mr Cowie’s health in the 5 years prior to his application for cover was foundational to his contractual relationship with Vitality.”

He concluded: “To exclude evidence capable of casting a particular light on the truth and accuracy of those statements would be grossly unfair to the private interests of Vitality in advancing its own position and to the public interest in seeing the court do justice on the basis of all material relevant to its decision. Those interests clearly outweigh the public and private interests in maintaining the confidentiality of information pertaining to Mr Cowie’s health in circumstances where he chose to make the state of his health the basis of his dealings with Vitality.”

Lord Sandison therefore ruled that the records in issue were admissible as evidence in the parties’ underlying dispute, subject to the undertaking given by Vitality not to use certain material from them.