In a medical negligence claim the clinical record is usually the strongest evidence either side has, because it was written at the time by people who had no reason to think the case would reach a court. That is why obtaining the medical records is the first substantive step in almost every claim, and why what the record omits matters as much as what it says.
In short: the record carries weight because it is contemporaneous, not because it is assumed accurate. It is obtained by subject access request under the UK GDPR, which has a one month deadline, while the pre-action protocol asks for copies within 40 days. Adult NHS records are normally kept for eight years, children’s until their 25th or 26th birthday. A note made at the time is strong evidence but not conclusive, and where the record is silent both sides argue over the silence rather than being handed an answer by it.
Prof Sandip Hindocha is a Consultant Plastic Surgeon and National Lead Forensic Medical Examiner who prepares medical negligence reports for solicitors and the courts. Read more about his background and instructing him as an expert witness.
What Counts as a Medical Record
Far more than the GP notes and the hospital letters. A complete set normally includes the GP record and its correspondence, inpatient and outpatient notes, nursing notes, observation charts, drug charts, operation and anaesthetic records, consent forms, pathology results, imaging reports and the images themselves, discharge summaries, and ambulance records.
The documents that decide a case are often not the ones anyone asks for first. Nursing observation charts settle questions of timing the medical notes leave vague, because each set of observations carries a clock time and an initial, and drug charts show when a dose was given rather than when it was prescribed. Where records are electronic, the audit trail showing when an entry was amended is a separate disclosure item and is rarely supplied unless it is asked for.
Why a Note Made at the Time Outweighs Recollection
Because memory of a routine clinical encounter years later is thin, and the courts say so openly. In Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), Leggatt J concluded that the best approach for a judge is “to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts”. That was a commercial case, but the observation has been cited across the civil courts since.
In clinical claims the point is sharper. A consultant who sees forty patients a week will not have an independent memory of one appointment four years ago, so their evidence becomes evidence of usual practice rather than of what happened. The patient’s memory of that appointment is vivid, which is not the same as accurate.
How the Record Connects to the Legal Tests
Each element of a claim draws on a different part of it. Breach of duty turns on what was done, by whom and on what information, which is the clinical entry itself. Causation turns on what would have happened had the omission not occurred, and that argument is built from timings, observation trends and the sequence in which results came back, as set out in the piece on understanding causation in complex medico-legal cases.
Both have to be proved on the balance of probabilities, and the record is usually what tips that assessment. An expert who cannot point to something in the record to support a conclusion is offering an opinion the court has little reason to prefer over the opposing one.
How Medical Records Are Obtained
By subject access request, by the pre-action protocol, or by disclosure once proceedings have started. Article 15 of the UK GDPR gives a patient a right of access to their own data, and the provider has one month to respond, extendable by two further months where the request is complex. The first copy is normally free. Separately, the Pre-Action Protocol for the Resolution of Clinical Disputes states at paragraph 3.4.1 that “the copy records should be provided within 40 days of the request”. Its wording on charges still refers to the Data Protection Act 1998, but the 40 day expectation is what a court will hold a provider to before proceedings.
Where the patient has died, data protection law does not help, because it protects living individuals. Access runs instead through the Access to Health Records Act 1990, which gives a right of access to the personal representative of the estate and to anyone who may have a claim arising out of the death. Once a claim is issued, standard disclosure under CPR Part 31 takes over.
How Long Records Are Kept
Long enough for most claims, but not for all of them. The periods are set out in the NHS Records Management Code of Practice retention schedule.
| Record type | Retention period | Runs from |
|---|---|---|
| Adult health records | 8 years | End of operational use |
| Children and young people | Until the 25th birthday, or the 26th where treatment ended at 17 | End of treatment |
| Maternity records | 25 years | End of operational use |
| Mental health records | 20 years, or 10 years after death | End of operational use |
Set those against limitation and the tight cases become obvious. Section 11 of the Limitation Act 1980 gives three years from the cause of action or the later date of knowledge, and for a child time does not start until they turn 18. An adult record destroyed at eight years can disappear while a childhood injury claim is still well within time.
What a Useful Entry Actually Contains
Enough for someone who was not there to reconstruct the decision. Paragraph 69 of the General Medical Council’s Good Medical Practice requires that “formal records of your work (including patients’ records) are clear, accurate, contemporaneous and legible”, and paragraph 70 sets out what an entry should normally cover, including the clinical findings, the treatment given or prescribed, the information shared with the patient and the decisions made.
The entries that survive scrutiny are the specific ones. “Abdomen soft, non-tender, bowel sounds present” can be tested against the claim being made. “Patient well, for discharge” cannot. Recorded negative findings do more work than almost anything else, because they show a question was asked rather than overlooked.
When the Record and the Patient Disagree
The record does not automatically win. In Synclair v East Lancashire Hospitals NHS Trust [2015] EWCA Civ 1283 the patient said he had been in pain with a darkened stoma before discharge, while the note recorded him as well with a stoma of normal colour. The trial judge found the note inaccurate, preferred the oral evidence, and the Court of Appeal upheld him.
The reasoning cuts both ways. A contemporaneous document still has to be assessed for reliability, and a judge who has seen the witnesses and has no evidence about how a note came to be written may conclude it is wrong. Equally, a party attacking a note has to give the court a reason to doubt it rather than assert a different account.
What Happens When the Record Is Silent
Nothing automatic, in either direction. Where a party was under a duty to record something and did not, the court may approach the evidence differently, a principle associated with Keefe v Isle of Man Steam Packet Co Ltd [2010] EWCA Civ 683. That approach has limits. In Johnstone v Fawcett’s Garage (Newbury) Ltd [2025] EWCA Civ 467 the Court of Appeal declined to treat missing records as triggering an inference on their own, holding that the force of the point depended on what the missing documents would actually have established.
For an expert the discipline is to keep three things apart in the report. What the record positively shows. What it does not record, where an entry would ordinarily be expected. And what can be inferred from surrounding entries, such as an observation chart that continues normally through a period the notes do not cover. Those carry different weight, and a report that blurs them will be taken apart in cross-examination.
Recording the Consent Discussion
A signed consent form proves that a form was signed. Since Montgomery v Lanarkshire Health Board [2015] UKSC 11 the duty is to take reasonable care to ensure the patient is aware of material risks and reasonable alternatives, which is a conversation rather than a signature, as set out in the piece on how the test for clinical negligence changed from Bolam to Montgomery.
What carries weight in a consent dispute is the clinic letter written after the discussion, the note of which risks were named and in what terms, any record of alternatives offered, and evidence of a gap between discussion and procedure. A pre-printed risk list ticked on the day of surgery is the weakest version of it.
What an Expert Does With the Bundle
Builds a chronology before forming any view. That means reading in date order rather than starting with the index, reconciling entries that conflict, placing results against the time they were reported rather than the time the sample was taken, and listing what is missing so the instructing solicitor can request it while there is still time. The gaps are predictable: nursing notes and drug charts left out of disclosure, imaging reports supplied without the images, and the other provider’s record never requested at all. The reading does not change according to who gave the instruction. An expert’s duty under CPR Part 35 is to the court, which is why the same records should produce the same chronology whichever side holds the file, a point developed in the piece on why independent clinical opinion matters in medico-legal cases.
Frequently Asked Questions
How long does a hospital have to provide medical records? One month under Article 15 of the UK GDPR, extendable by two further months where the request is complex, and the provider must say within the first month if it is taking the extension. The pre-action protocol sets a 40 day expectation in a clinical dispute.
Can a charge be made for a copy of medical records? The first copy is normally free. A reasonable fee can be charged for further copies of the same records, or where a request is manifestly unfounded or excessive.
What can be done about an entry that is wrong? Article 16 of the UK GDPR gives a right to have inaccurate personal data rectified. In practice a disputed clinical entry is annotated rather than deleted, with the original left in place and the disagreement recorded alongside it, because what a clinician believed at the time is itself relevant.
Can records be obtained after the patient has died? Yes, under the Access to Health Records Act 1990, by the personal representative of the estate or by anyone who may have a claim arising out of the death. The subject access route does not apply, because data protection law protects living individuals.
Does a missing entry mean something did not happen? Not on its own. Where a record should have been made and was not, the court may take that into account, but an inference drawn from absent records cannot do the work of findings of fact.
Related Reading
- How to write a high-quality expert witness report
- Contributory negligence and how it affects a medical claim
- What happens when an expert witness is criticised by the court
Instructing an Expert on the Records
Most arguments about a clinical record are really arguments about what a competent clinician would have recorded, which is a question for an expert in the relevant specialty rather than for the parties. The same records are often also the evidence that decides whether private treatment costs were reasonably incurred. Prof Hindocha prepares CPR Part 35 compliant reports in medical negligence claims, working from the full records and flagging gaps at the chronology stage rather than at trial. See how to instruct.
This article is general information about the role of medical records in civil claims in England and Wales. It is not legal advice and it is not clinical advice about any individual case. Anyone considering a claim should take advice from a solicitor on their own circumstances.