Recording clinical consultations

Ms Claire Cregan addresses the ethical and legal considerations of patients recording consultations

In January 2024, the Medical Council published its updated Guide to Professional Conduct and Ethics for Registered Medical Practitioners (‘the Guide’). It includes the following best practice guidance on photographic, video or audio recording by a patient during a consultation:

“You should be aware that patients may wish to record all or part of a consultation. If they wish to do so, you should facilitate their request. If you consider that recording could have a negative impact on your consultation, you should explain this to your patient and, if possible, come to agreement.”

While some doctors may be comfortable to have their consultations recorded and believe that a genuine recording serves to protect doctors and to provide evidence of their professionalism, we understand from speaking with our members that the majority do not favour their patients recording their consultations and have cited several reasons for their views. Some advised that the recording device (usually a smartphone) placed in the middle of the room is an unnecessary distraction and can interrupt the natural flow of the consultation. Others have highlighted that an audio recording is unlikely to capture the full extent of what was discussed; for example, the nature of a physical examination or the non-verbal communications that can be important during a consultation.

At Medisec, we are often asked by our members how they should manage and facilitate requests by patients to record their consultations and to clarify if it is legal for a patient to make a recording; whether done overtly or covertly.

Is it legal?

In Ireland, there is no specific legislation to prohibit a patient from recording their own clinical consultation, with or without the doctor’s knowledge and consent. This may seem unfair to the treating clinician, particularly where the patient is recording covertly. However, where it is the patient’s own personal and sensitive clinical information being discussed during the consultation, and the recording is for the patient’s own personal use, the General Data Protection Regulation (GDPR) will not apply to this recording.

There may, however, be situations where other rights and laws place limits on what the patient can do with their recording. For example, if the doctor’s personal information was recorded, their constitutional right to privacy or rights under the European Convention on Human Rights may limit how the patient could use the recording. If the patient altered or edited the recording to damage the reputation of the doctor, publication of that recording could form the basis for a claim for defamation by the doctor.

By comparison, if the doctor decided to record a patient consultation, the obligations placed on data processors and controllers under Articles 17-19 of GDPR would apply to that recording, as they would be processing the sensitive personal data of another person.

The Guide also provides guidance to doctors who “determine that making audio, video or photographic recordings of a patient is necessary and appropriate for patient-care and/or beneficial for education and training purposes”.

The guidance includes an absolute duty on the doctor who “must explain this to the patient and obtain their consent to both the making and any proposed sharing of a recording” and “must take particular care in relation to the storage and sharing of recordings of a patient”. 

The Guide further states that the doctor “must take all reasonable and required steps” to ensure that they follow their professional duty of confidentiality, as well as their legal duties regarding data protection.

In summary, it is necessary for a doctor to inform and seek consent from a patient prior to recording their consultation, but the same level of disclosure is not required from the patient.

In Ireland, there is no specific legislation to prohibit a patient from recording their own clinical consultation, with or without the doctor’s knowledge and consent

Negative impact

Although it is not unlawful for a patient to record their consultation, the Guide acknowledges that this may impact negatively on the consultation and encourages discussion and agreement on the issue between the doctor and their patient.

Where the therapeutic relationship between a doctor and a patient is based on mutual trust and respect, it is important for the doctor to explain any discomfort with being recorded. They should clearly outline their reasons and seek to understand why the patient wishes to make a recording in the first place.

The patient may have valid or personal reasons. For example, they may have poor hearing or have difficulty retaining clinical information and this could be embarrassing for the patient. Following an open and honest discussion, it may be possible to reach agreement on the use of alternative options. In some circumstances, it may be appropriate for the doctor to use visual aids throughout the consultation or to provide information leaflets to the patient. The doctor may also be happy to send a letter following the consultation, detailing any pertinent clinical information discussed. It may also be appropriate to suggest that a family member or support person attend the consultation with the patient.

If agreement cannot be reached and the patient refuses to stop recording the consultation, despite the doctor discussing their concerns/reservations, and alternative options with the patient, it will be a matter for the doctor to consider whether recording could have a negative impact on the consultation.

To avoid any potential patient safety issues, we do not recommend immediately terminating the consultation, or without first assessing the patient to ensure there are no serious clinical issues requiring urgent attention. It is worth bearing in mind that a refusal to proceed with the consultation or to assess the patient is likely to be recorded and may result in a patient complaint.

The doctor will then have to determine whether they are comfortable to continue treating the patient in the future, or if they believe the therapeutic relationship has irrevocably broken down as a result. 

Breakdown of therapeutic relationship

The Guide acknowledges that good medical practice depends on doctors working together with patients towards shared aims and with mutual respect and describes the relationship as a partnership dependent on establishing trust, working collaboratively, and communicating effectively with patients.

Although the act of recording a consultation may not in itself be sufficient to ask a patient to attend another doctor, if a doctor believes that it negatively impacts them to the point they are unable to continue to provide effective care to the patient because the therapeutic relationship has broken down, it may be in the patient’s best interests to receive their clinical care from another doctor. It is important that the doctor adopts a fair, balanced, and unbiased approach to managing the situation.

We appreciate that the breakdown of a doctor-patient relationship can be challenging and these conversations can be difficult. Prior to asking a patient to attend another doctor, we recommend seeking specific advice from your indemnifier on how best to manage the situation.

In conclusion, it is important for doctors to be aware of the Medical Council’s best practice guidance to facilitate a patient’s request to record their consultation if they wish to do so, while also considering the impact this may have on their consultation and overall therapeutic relationship with their patient. We appreciate that each patient and each consultation will be different and we strongly encourage doctors to seek specific guidance from their indemnifier.