In Birmingham Women’s and Children’s Hospital NHS Foundation Trust v KB & and ors [2025] EWHC 1292 (Fam), the Court of Protection had to grapple with some remarkable failures of disclosure in a case involving the withdrawal of life-sustaining treatment from a critically ill child.
The Trust had applied for declarations that it would be lawful to withdraw life support for a young child with a rare and devastating condition. Despite clear directions months earlier, the Trust failed to provide a full, coherent set of medical records. Some documents were missing. Others were poorly copied and unreadable. Crucial details, like notes from therapeutic staff and minutes from key meetings, simply weren’t there or were said not to exist.
Just days before the final hearing, over 3,000 pages of material were disclosed—some of which had previously been denied to exist at all. Perhaps understandably, the parents’ legal team asked for the hearing to be adjourned as their ability to prepare was seriously undermined. Given the child’s condition, Mrs Justice Morgan did not feel that she could agree because a significant delay may have reduced the medical options available. The hearing was pushed back by two days, and the court pressed on under immense pressure.
In a separate judgment, Mrs Justice Morgan sharply criticised the Trust’s chaotic handling of medical records. The Trust’s disclosure process was not only inadequate—it was disrespectful to the family and placed almost impossible demands on the lawyers involved. In fairness to the Trust, it did not shy away from the mistakes and inadequacies in the case and had already begun to put in place a number of improvements to reduce the risk of this happening again.
So, what can be learned from this? Helpfully, Mrs Justice Morgan made 8 suggestions to avoid this sort of disclosure debacle in future. Practitioners should take note:
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- Index early, index often: An index at an early stage should be compiled by the applicant of the records held by the Trust including the clinical, medical and therapeutic records.
- Ensure accountability: Identify a person with responsibility for ensuring that the index is kept up to date.
- Déjà vu: If records are duplicated or held in more than one place, make it clear in the index.
- Early doors: The index should be available at the first hearing.
- Page against the machine: Avoid pagination chaos by adopting a form which can be added to subsequently (rather than changed).
- Blurred lines: If you cannot read it, do not add it to the index. Ensure copies are of sufficiently good quality before adding them to the bundle.
- Signed, sealed … and actually delivered: A senior person should have responsibility for ensuring that material is sent out.
- Ctrl+F: If possible, make the documents searchable.
These are often profoundly difficult cases. Families are watching how the system works. When hearings get derailed by missing documents and late disclosure, it sends all the wrong messages about how seriously we all take these cases.
Neil Davy KC of Serjeants’ Inn Chambers represented the child in these proceedings.