The article by Thompson ^{Reference Thompson1} contains many errors and misleading statements. To begin with, Thompson says that requests from courts for medical records ‘are issued by letter’. Courts do not issue requests; they make orders (sometimes referred to as directions). Such orders are never couched in the form of a letter. An order requiring the production of medical records is normally addressed to one of the parties to the proceedings. Such an order would be likely to be addressed to a hospital, National Health Service trust or other such body, or to an individual doctor only when that hospital, trust, other body or doctor had previously failed to disclose the records sought.

The author says that a psychiatrist has the duty to ‘seek legal advice from the trust if it appears that clinical information is being requested that is not relevant to the legal issue at stake’. The psychiatrist has no such duty and would be well advised to refrain from expressing any opinion as to whether the records sought are relevant to the issues in the case, and still more so from acting on any such opinion. The psychiatrist is unlikely to have a full appreciation of the legal issues involved. Whether or not he has a correct understanding of the issues, to refuse to release medical records whose disclosure has been directed, on the ground that they are considered not to be relevant to the case clearly defies the authority of the court and is certain to arouse the ire of the judge. An unsympathetic judge might consider it to be contempt of court.

Thompson states that when medical records are released in compliance with a court order, ‘third-party information must be removed from case notes’. This is not the case. Section 35 of the Data Protection Act 1998 provides, inter alia: ‘(1) Personal data are exempt from the non-disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court’. Accordingly, when medical records are released in response to an order of a court they must be disclosed in their entirety, as stipulated in the order. No items should be omitted.

Thompson further says that the psychiatrist's duty of confidentiality ‘is not automatically waived by a request from court’. She suggests that a patient could complain to the General Medical Council (GMC) of a breach of confidentiality and that the Council would investigate the complaint. The GMC's guidance on confidentiality states, at paragraph 21: ‘You must disclose information if ordered to do so by a judge or presiding officer of a court’. ² This, of course, does no more than state the law of the land. However, it is clear that no complaint could lie against a doctor merely on the ground that he had complied with an order of a court. Any attempt by the GMC to proceed against a doctor in these circumstances would quickly be thrown out by the courts, on the application of the doctor's medical defence organisation, as an abuse of process.

It is clearly good practice to inform a patient that an order requiring the release of his records has been received, and has to be complied with. Thompson suggests that a psychiatrist might be instructed by ‘court officials’ not to inform the patient. It is difficult to envisage any situation that is not fanciful in which a court might be minded to direct that an individual should not be informed that an order requiring the release of his medical records had been made. As judicial proceedings and court orders are ordinarily in the public domain, it would obviously be necessary for the court also to direct that references to these matters should be omitted from the public record of the proceedings. While disclaiming any legal expertise, I would doubt that any such powers exist, save in the most exceptional circumstances, such as cases involving issues of national security.

Thompson says that the Civil Evidence Act 1995 calls the process by which psychiatrists are requested to attend court ‘being served with a witness summons’. The Civil Evidence Act 1995 does not deal with witness summonses (it is principally concerned with the admissibility of hearsay evidence) and includes no such statement. The article includes a table (Box 1) headed ‘Standards expected by courts of an expert witness’. This is an adaptation of recommendations made by the Academy of Medical Royal Colleges in 2005. ³ The judiciary have not published any list of qualifications required to be possessed by expert witnesses, medical or other. The heading is accordingly misleading.