When your patient wants to record the consult
You’re getting ready to examine your patient when she tells you she wants to record what you have to say to her. Or perhaps she wants to prop up her smartphone on the desk and film you as well. Or maybe halfway through the consult, you notice the smartphone on her lap, and you have a sneaking suspicion she’s recording you without your permission. How do you react?
With smartphone ubiquity, everyone has a recording device on their person these days. An increasing number of people are asking their doctors whether they can record their conversations – and there have even been cases of patients uploading recordings or videos to youtube. What should doctors do?
First, there’s the legal issue. Is it lawful for the patient to record a consult without the doctor’s permission? The answer to that varies according to the jurisdiction. In the Top End, Queensland and Victoria, patients can record consults without seeking permission from their doctor, as long as the recording is for personal use and not shared with a third party. But in all other jurisdictions, consent from the doctor is required. This was upheld in NSW law in 2014, in a case where a patient secretly made a video recording of a female GP doing an examination for a groin hernia. The patient was charged with an offence under the Surveillance Devices Act 2007 (NSW), for the use of a listening device to record a private conversation to which he was a party.
In all states and territories, consent must be sought from the doctor before publishing or sharing a video or audio recording of a consult. Which means any uploading of videos or recordings to the Internet without your knowledge are illegal, and you should contact your medical insurer if you become aware of this happening.
If a patient asks your permission to record, what should you do? You have the option to decline, and if the patient insists, you may decide to terminate the patient-doctor relationship. But you should also be aware of your duty of care, which means that in such cases you will need to be able to assure continuity of care, and you will still need to treat the patient in cases of emergency.
You need not necessarily be suspicious of a patient who wants to record the encounter. Many studies have shown that retention of information after a consult is poor, and that information retained is often wrongly recalled, in any case. With compliance being a major issue in treatment, it may not be such a bad thing that the patient has an audio record of what you have told him or her.
There should be no need to change the way you do your consults if a recording is made, but it might be wise to ask for a copy, or to make your own simultaneous recording for your patient’s medical records. All electronic communications, such as recordings, text messages or emails can form part of the patient’s medical record.
In the case of a surreptitious recording, it appears to be unlikely that it could be used against you in a case of medical negligence, although the key factor would be whether the probative value of the evidence outweighed the prejudice of admitting it, according to MDA National medicolegal manager Dr Sara Bird.
In any case, it seems that it would be best to make peace with the recording of consults, given the increasing prevalence of people recording their lives and the possible benefits of increased compliance.
Sources: Avant, MDA National