What should you do if a patient wants to record a consultation?

With the proliferation of smartphones, many patients now have the ability to record a consultation at their fingertips. Recording a consultation has some advantages for doctors and patients. It can help the patient to retain information for example, but when a patient covertly records a consultation, it can cause the doctor to question why.

One study suggested that patients immediately forget between 40 and 80% of the medical information provided by their doctor and almost half the information they do recall is incorrect. 

To help ensure that they don't miss anything important, some patients are taking advantage of technology to record a consultation and watch it back later. Earlier this year, one consultant urologist told a national newspaper why he had no objection when a patient asked to record a consultation on his smartphone. "A lot of patients come in armed with a notepad, but if they are scribbling away they'll be so consumed with writing down what they hear that they might not understand what they're being told. In the case of the chap who filmed me, 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 the different treatment options are usually able to make an informed decision about the treatment they want which makes life easier for them and their doctors. 

Covert recordings

The GMC expects doctors to obtain patients' consent to make a visual or audio recording and to only make covert recordings with appropriate legal authorisation "where there is no other way of obtaining information which is necessary to investigate or prosecute a serious crime, or to protect someone from serious harm".

But what if the patient starts recording you without seeking permission or even decides to record a consultation covertly, as has happened to a number of MDU members recently? Can you refuse and are their actions a sign that your professional relationship with them has irretrievably broken down?

Patients do not need their doctors' permission to tape a consultation as the information they are recording is personal to them and 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 (including recreational purposes) are exempt from the data protection principles and the provisions of Parts II and III".

If you suspect that a patient is covertly recording you, you may be upset by the intrusion but if you act in a professional manner at all times then it should not really pose a problem. 

Your duty of care also means you would not be justified in refusing to continue to treat the patient. If you did, it could easily rebound on you and further damage your relationship with the patient. And remember that your refusal to continue with the consultation could be recorded.

A more pragmatic (and disarming) response would be 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 own medical records. In seeking their consent to this you should reassure them that the recording will be stored securely by the practice and only used for this purpose.

It's understandable to assume the worst when a patient tries to record your consultation but 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 that they do not trust you, you may want to discuss this with them but recording a consultation is not itself sufficient reason to end your professional relationship with them.

Finally, bear in mind that while recordings (even those made covertly) can be admitted as evidence of wrongdoing by the GMC and in court, they can also prove the opposite. In other words, if you have acted ethically and professionally you should have no reason to be worried.

Members with specific concerns about recording consultations should contact our advice line on 0800 716646.

This guidance was correct at publication 28/11/2013. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

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Comments

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DR ESCASINAS

Recording a consultation covertly per se doesn't sound that bad but what if the patient edits the recording and delete parts that contains the doctors advice and files a complaint that he/she wasn't advice appropriately . The doctor can't record every single piece of conversation with the patient on the case notes as it would be illogical and would be very time consuming. If a complaint arises from such covert recordings, the doctor is defenseless without the possession of the original recording. I think covert recording shouldn't be allowed to be presented as a legal document unless the doctor has been given the original recording to prevent tampering of documents. I think someone has to have a second look at the Data Protection Act which has been framed ages ago and doesn't seem to cope with the advancement of technology. I don't think the sages then who made the act is able to foretell as to how far technology has progressed today.

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DR KUNJUKRISHNAN

The advice does not cover the situation when a relative records a consultation/ meeting covertly without consent from either the patient,the doctor, community nurse, care home staff or friends of the patient as had happened to me in an MDT meeting in a care home a couple of years ago. I had to insist that the meeting would not proceed any further without the device being turned off. As a compromise, I agreed that the minutes of the meeting would be sent to the relative.
It would be prudent to enquire if the recording is purely an audio recording or an audiovisual recording.I would have grave concerns if a covert audiovisual recording is uploaded onto social media sites; it would only seem logical to infer that such a recording would breach the doctor's personal privacy. I would like the MDU to provide more explicit legal guidance to its members on these issues.

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DR LUTCHMAN

The MDU has the authority of experience and knowledge. On this occasion they fail in their position to assess or address a fundamental cornerstone of the doctor patient relationship. If a patient is found to be covertly recording me (obviously without my consent), I would consider it a breach of confidence and trust - which on the balance of probabilities would seriously impair my relationship with that patient. The whole spirit of openness and trust is terribly important in the doctor patient relationship. Why is the patient not asking first to record the conversation, with sound reasons? The covert recording by the patient means in the majority of cases that the patient intends to catch the doctor out. Call me paranoid - but that is what I think and I have good reason to think that such a patient would be up to no good. Such an act of covert recording, severs my ability to continue to treat/manage that patient in that particular consultation. Were I to continue to care for that patient, every meeting would be prefaced with the words "Are you recording me.. I do not wish to be recorded." Now is that the way to have a therapeutic relationship. I don't think so. The MDU needs to rethink its advice in the particular scenario - they need to think what is at the heart of the therapeutic relationship between doctor and patient. I call that trust. If the breach is so serious, I would consider ending the therapeutic relationship. Yes - I would also consider additional factors such as: 1. Does the patient have a mental disturbance of a medical nature which excuses his conduct and 2. If so, is that something I can work with (or not).

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DR NALIYAWALA

It has been a normal practice with me for the last few years to copy the patient into the letters sent to the GP following an outpatient consultation in my psychiatry clinic. Hopefully it has avoided patient forgetting what was discussed in the consultation and reducing the need for such practices as covert recordings unless done so for motives other than as aids to help them remember .

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Dr Phil Zack, MDU medico-legal adviser

Thank you for all your comments. As we say in the article, while it can be disarming to learn that a patient may overtly or covertly record a conversation, it is worth bearing in mind that this is still an unusual occurrence and that even when it does happen, it doesn’t necessarily mean that a complaint will follow.

As to whether a recording could be edited or altered in some way, if the doctor is aware that the patient is making the recording, they could ask the patient to provide them with a copy, which could form part of the patient's medical records. There is nothing to compel the patient to comply with the request, but the patient’s decision could be noted for future reference. In the event of a complaint or claim, any recordings made by the patient will be considered along with other evidence, such as the records made by the doctor at the time of the consultation. Irregularities in evidence (such as odd breaks in an audio recording) are unusual, but if they occur, might well be picked up at the investigation stage and would then call the veracity of the evidence into question.

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DR ROWLANDS

I think the point made by Mr Youssef needs to be considered seriously. One of my staff members recently had a contraceptive implant insertion recorded overtly by a patient on her smartphone. The doctor concerned did not know how to handle this and let the recording continue. One needs to consider however that this recording could have included the doctor's face, the face of a third party in the consulting room and may for all I know now be on YouTube. I think trust and the doctor-patient relationship can be taken too far. The doctor, nurse and escort of a patient all have the right to privacy.

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DR TOWNEND

Your advice does not cover the possibility that a recording taken by a patient, whether openly or covertly, can be edited and may not truly represent the content of the consultation. This could be avoided only by the doctor being given an immediate copy of the recording before there has been any opportunity for it to be edited.

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DR WORRALL

Dr Townend makes a very valid point. I would welcome the MDU comment on this as I too believe the advice is flawed in this instance

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MR PITCHERS

I note that such recordings are exempt from the data protection act in terms of possession of such a recording, but that does answer the question of if an individual is able to record another without their permission in the first case? In the case of visual recording it depends on if the location is a public place, a consultation room is not such a place, neither is an NHS hospital. Therefore is one individual allowed to covertly record another in a non public place without their permission or the permission of the organisation?

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MR YOUSSEF

If that is right. Then I can expect part of my consultations to different patients to be uploaded on Facebook and YouTube which I find very odd and inexcusable. Imagine if you went to supermarket or a barber and told them excuse me but I will record every single word you say or even worse you don't tell them, would that be fine since it is my grocery that we are talking about. I am not convinced in any way that this is the way how a doctor patient relationship should be. And I assure you that if we pretended that this is fine, doctors will be very much political, defensive and weary in such consultation and their mind will only be focused on protecting themselves from any word that can bear two meanings rather than concentrating on treating the patient which is definitely not in the patient best interest.

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