For the Record: Can Patients Record Clinical Consultations?

RECORD

Somewhere in the ITV archives is television footage of me, on my first day in the PED as an ST3 doctor, assessing a child with a scald in resus.

I knew before I started my six month PEM rotation that the crew weren’t quite finished their filming commitments but at no point had I considered that, as the 8am starting doctor, I would find myself with a camera in my face explaining the importance of first aid for burns before I’d even acquired a set of scrubs. The stress of the situation was matched when the episode aired on national television some months later. The narrator was good enough to point out that although it was my first day, I had a lot of experience dealing with children and burns.

I remember my non-medical family being very excited about my upcoming television appearance. I also remember being terrified. Why? Because no-one needs to know that they look like a total idiot doing the thing that they do all day, every day.

Later the same month I was captured by the same crew trying to put small-sized gloves (my hands are medium-sized but for practical reasons at the time – boom mic, small cubicle, distance to hand towels, proximity of box of small gloves) over my wet hands. Thankfully this incident was edited out.

 

There is a phenomenon whereby people do strange and unexpected things under scrutiny; I’m sure those of you who examine in OSCEs at all levels of training have many wonderful and entertaining stories. There are things we do under the pressure of being watched which we ourselves struggle to understand. I hope that regular OSCEs and increasing comfort with the practice of high-fidelity simulation will go some way towards reducing the associated anxieties and normalise our behaviour in these circumstances.

But what about when the recording is being done by a patient?

Let’s imagine a scenario. You call the next patient from the waiting room into the cubicle, introduce yourself and ask how you can help. The patient whips out an iPad and sets it up on the desk.

“You don’t mind if I record this, do you?”

 

[DDET What is your immediate reaction?]

Like me, you may feel the immediate OSCE gut-squeeze: IT’S A TRAP!

The patient is trying to catch me out! And besides, they can’t record the consultation, because of patient confidentiality… or something… Or can they? [/DDET]

[DDET Can patients record the consultation?]

This is a relatively new problem but one which we may start to see occurring more regularly in clinical practice as smart phones and portable devices are ever more commonplace.

The short answer is yes: the patient can record the consultation and it is certainly not unlawful (in the UK) for the patient to do so. In recognition of the fact that this issue may arise in practice the Medical Protection Society produced some great advice in 2012 which you can read here. In summary:

It is polite to ask permission before recording someone; if the patient asks and you feel uncomfortable, you can request that the patient does not record the consultation.

If you ask the patient not to record and they do not comply, you have a duty of care and you should be wary of refusing to see/treat the patient on the basis of their recording.

Ultimately if you are behaving professionally there is nothing to fear: recordings help patients to recall complex information (we know that we are useless at remembering most of what we are told) and provide a more accurate log of events than our often scanty medical records. It is advisable to request a copy of the recording to supplement the patient’s notes. [/DDET]

[DDET What if the patient is recording covertly?]

When the recording takes place covertly – that is, without your knowledge – the biggest risk is harm to the trust between you as the clinician and your patient. Otherwise all of the principles above apply; the data being recorded is the patient’s own (although the recording may include your face and voice you will usually not be sharing any data about yourself) and so it is exempt from data protection principles as long as it is for their personal use as this guide from the Medical Defence Union explains.

The data belongs to the patient and they are entitled to do what they want with it – include posting it on the internet. [/DDET]

[DDET Can relatives record the consultation?]

This is more complicated and relies on the patient’s consent. If the patient is unable to consent (for example, unconscious) then the answer is no. The patient should be aware that the data being recorded is theirs and as such they may wish to ensure that the device being used is also theirs.

When the patient is legally a child, guidance is greyer. Parents are routinely copied into correspondence about their children and there is some common ground here. If it is the young person who wishes to make the recording it is a good idea to recognise that as an excellent opportunity to involve them in their care. In any circumstances where the recording is not being undertaken by the patient themselves, a quick chat about stewardship of digital recordings might be pertinent. [/DDET]

[DDET Is the recording something to be worried about?]

No. Behave professionally and be polite and courteous towards your patients and there is nothing to fear from being recorded. However uncomfortable we might feel there is no legal basis for the trust in a doctor-patient relationship but there is legal basis for the handling of patient data.

It may be worth exploring why the patient wants to record the consultation as this may expose particular concerns you can then address.

In some circumstances, recordings made without your consent may be admissable as evidence in court but if this occurs then the defence will be entitled to both a copy of the recording and a transcript prior to the court date so that both parties can confirm that the interaction constitutes an accurate (and unedited) record.

In this recent ADC editorial (not FOAM), Ian Wacogne explores the relationship between patient consultations and the digital age. He quite rightly advises that we should not ignore the issues that the availability of technology – and of medical opinions – bring to us:

We cannot put our fingers in our ears and chant ‘la la la la’, hoping that this will go away.

[/DDET]

And of course, this is very different from the circumstances in which doctors record consultations with patients – there is GMC advice on that here. This post is based on UK law and may be different in other parts of the world.

6 Comments

  1. KIdocs.org

    That is interesting. Where I work (South Australia) there are signs everywhere stating “no recording without consent”. I presume it is meant to discourage footage of people in ED being broadcast willy-nilly….but I assumed also applied to the case of an ED patient (or perhaps their relative) whipping out an iPhone and recording the consult or procedure. The intimation is that this is illegal – the converse of the UK.

    I have no idea what the truth is, must do some digging. Any legal-minded people able to comment? Does it vary from country to country? Or is there a universal principle common to all?

    Reply
  2. Janos P Baombe

    I might be simplistic here but my (own made) rule is:
    1. They should ask
    2. I should agree
    If we disagree and situation allows, the doctor should arrange for someone else to deal with the patient.
    I don’t stop in the street to talk to strangers (unless I want to).
    It’s obviously different here as we have a duty of care but if the reason for recording is to remember “complex info”, the doctor should be able to provide some aide memoire after the consultation.
    I somehow feel this as an intrusion (personal opinion open to debate)and my worry is this could alter the quality of the consultation…

    Reply
    1. KIdocs.org

      Still no clear answer at my end, but idle musings.

      I dont have a problem with patients recording a consult – provided is overt not covert and all parties agree.

      I think the signs I have seen in SA EDs are probably designed to protect the clinical staff, who may not wish to be recorded without consent.

      A bit tangential, but it strikes me as odd that we get caught up in these discussions in ED…ignoring the elephant in the room, namely that it is almost impossible to preserve confidentiality in a patient cubicle, with just a thin curtain separating one patient from another. Intimate questions about bodily functions, sexual habits, medical problems etc are easily overheard….unless each patient is assigned their own room.

      Confidentiality is important. Our systems and best efforts should preserve it.

      Reply
      1. domrayment

        A patient recording a consultation without consent is illegal in New South Wales, as it is deemed a private conversation and is therefore an offence under the Surveillance Devices Act (NSW) 2007. This ruling was upheld in the NSW Court of Appeal (Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133).

        Whether the same would apply to South Australia, I’m not sure.

  3. james kelli

    Well it is interesting to heard something like that patients can record clinical consultants. But in terms of medical protection it could be an advantage for both patients and the clinical staff during any kind medical consultants. But it seems to be good in Medical Defence Union & unions.

    Reply
  4. nataliemmay

    This article from JAMA was shared on Twitter this week – not sure it adds much (FOAM gets there first!) http://jama.jamanetwork.com/Mobile/article.aspx?articleid=2204226

    Reply

Thanks so much for following. Viva la #FOAMed

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