The question of whether or not you can or should record conversations during consults arises fairly frequently. We recently wrote about the legality of recording workplace meetings. The next natural question is what about recording consultations?
As a doctor, you may wish to record a consultation or conversation yourself, or you may have questions about patients recording consultations.
Whether or not this is permissible is a complex question as every state has slightly different legislation about what is allowed, depending on the circumstances.
One widely cited paper on patients’ ability to accurately recall clinical information suggests that up to 80% of information provided by healthcare providers may be forgotten immediately and much of what is recalled may be incorrect.
If a patient is distressed, or has communication difficulties, or simply wants a record of the discussion, it may well be in everyone’s interests for them to have a record of what was said so they can review it, clarify any questions and make sure they understand your advice.
If you think an audio recording may be useful, you may wish to take control of the process. In this case, you may choose to offer to record the consultation yourself. This should be raised with the patient at the start of the consultation. If they agree and a recording is made, the recording should be stored in your clinical records.
The file of the recording will be very easy to share so you should be clear with the patient about the purposes for which you agree it may be used.
It may be for them to keep for their own purposes and to listen to with family members, to clarify your medical advice, but not for publication.
It is wise to have the patient agree to this in writing, confirming the details of the file provided and the limits on its use.
This should be kept with the clinical records.
If you are uncomfortable with the consultation being recorded, you are entitled to decline.
Many practices now have signs asking people to silence phones in waiting rooms and turn them off in consultation rooms.
But if a patient or support person asks whether they can record the consultation, it is better to try to understand their reasoning, rather than issue a blanket refusal.
After discussion, you may be happy to agree or you may offer to provide a letter or copy of your notes or some written information to the patient as an alternative.
If a patient starts to record a consultation without permission, or if you discover that a patient has published a recording without consent after the consultation, you may have a legal remedy. But you need to act with caution as this is a complex area of the law and each state’s legislation is slightly different.
If a party to a conversation records it without the other party’s permission, that may be an offence, depending on which state you are in. All states have some form of legislation regulating the use of listening devices, which include recorders on mobile phones.
A patient secretly recording his consultation with a GP was found to be an offence in a NSW decision (Toth v Director of Public Prosecutions  NSWCA 133).
Secret recordings have also been considered in employment cases, where there has been discussion of these recordings “shattering the trust and confidence necessary to maintain that relationship”. Arguably this would also apply in a doctor-patient setting.
Unfortunately, there may be some patients who breach your trust by making a surreptitious recording and this may lead to the treating relationship coming to an end.
For the most part, however, the request to make a recording will be for good reasons and it is important to understand these reasons and reach a compromise.
In summary, the law in this area is complex. Some states impose significant penalties, including prison sentences for making or publishing unlawful recordings.
However there is also a range of exceptions, so it is important to seek advice before you act, or react.
Even if you believe the law is out of step with available technology, it remains important to work within its framework.
By: Ruanne Brell, BA, LLB (Hons), Medico-legal Advisor, Avant’s Medico-legal Advisory Service and Dr Penny Browne, MBBS, FRACGP, MHL, Chief Medical Officer, Avant