Patients recording consultations

Video-enabled smartphones offer patients the means to record consultations with their doctor. MDU medico-legal adviser Dr Philip Zack looks at the implications.

The prospect of a patient recording their consultation with you may seem quite alarming, but it would be a mistake to assume their actions have an ulterior purpose. In fact, it may even be to your advantage.

Effective communication

Research has repeatedly shown that patients forget much of what they are told by their GP as soon as they leave the surgery - between 40% and 80% according to one study, which also found almost half of the information they do recall is incorrect. The problem is worse if the patient is not fluent in English, or has hearing difficulties or learning disabilities.

Some patients try to take notes during a consultation but even then, they may be so busy writing, they will not have the chance to think of questions or get the reassurance they may need.

By recording a consultation to listen to again later, patients are less likely to miss something important. One consultant urologist had no objection when a patient asked to record a consultation on his smartphone. "I was discussing the ramifications of various surgical options. There were facts, figures and side effects to digest. By filming me, it meant he could do this in the comfort of his own home and weigh up the options at his own pace".

Patients who understand the risks and benefits of their treatment options are usually able to make an informed decision about the treatment they want, which makes life easier for them, and for their GP when it comes to obtaining consent.

It is also worth bearing in mind that the GMC expects you to 'give patients the information they want or need to know in a way they can understand. You should make sure that arrangements are made, wherever possible, to meet patients' language and communication needs'.

Covert recording

What if a patient starts recording you without asking permission, or decides to record a consultation covertly, as has happened to a number of MDU members recently?

Are their actions a sign that your professional relationship has broken down?

Although the GMC expects doctors to obtain patients' consent to make a visual or audio recording, patients do not need their doctor's permission to record a consultation, because they are only processing their own personal information and are therefore exempt from data protection principles.

Section 36 of the Data Protection Act 1998 states: 'Personal data processed by an individual only for the purposes of that individual's personal, family or household affairs are exempt from data protection principles.'

If you suspect a patient is covertly recording you, you may be upset by the intrusion, but your duty of care means you would not be justified in refusing to continue to treat the patient. If you did, it could rebound on you and further damage your relationship with the patient. Remember that your refusal to continue with the consultation could also be recorded.

A more pragmatic response might be to invite the patient to record the consultation openly and ask them whether you can have a copy of the recording, which can then become part of the patient's medical records. In seeking their consent, you should reassure them the recording will be stored securely by the practice and only used for this purpose.

It is understandable to assume the worst when a patient tries to record their consultation, but their behaviour should not pose a problem.

It would be a mistake to think they are trying to catch you out or that a complaint or claim will inevitably follow. If you are concerned that the patient's actions are a sign they do not trust you, you may want to discuss this with them at a later date, but recording a consultation is not itself sufficient reason to end your professional relationship with them.

Admissible evidence

Be aware that recordings (even those made covertly) have been admitted as evidence of wrongdoing by the GMC and in court. However, they can also prove the opposite. If you have acted ethically and professionally, you should have no reason to worry.

This article originally appeared in the printed Good Practice June 2014 issue entitled "Can I record you doctor?"

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