Doctors often contact Medical Protection about patients or relatives who have recorded or wish to record a consultation. Ms Sinead Lay discusses the various considerations for doctors
In this era of personal digital devices, there is increased opportunity for electronic recordings of medical encounters by patients and families to occur. Recordings of consultations, whether covert or overt, presents both benefits and risks.
Patients or their relatives may ask for your permission before recording or some may proceed with covert recording without prior permission.
Recorded consultations could assist some patients in remembering or better understanding recommendations provided by their doctors. It may also improve patient compliance and overall engagement in medical care, and help patients accurately communicate recommendations to family members and other caregivers who are not immediately available during the clinical encounter.
However, when consultations are recorded, there is the potential for issues to arise when recorded comments are taken out of context or misinterpreted, leading to confusion on the part of the patient and/or family members. Overt recordings of medical encounters may also alter doctor decision-making. A feeling of ‘needing to appease’ during a recorded consultation may lead to more invasive or aggressive testing, unnecessary referrals and expense for the patient and, of course, the pressurised Irish healthcare system.
Covert recordings of medical encounters may be a consequence of underlying distrust between patient and doctors and may irreparably harm the doctor-patient relationship by introducing distrust, causing the doctor to potentially take a more defensive attitude in subsequent consultations with the patient and their family members, negatively impacting ongoing medical care and further compromising a patient-doctor relationship.
If you are asked for permission to record a consultation, it would be helpful to explore and establish the reasons behind wanting to record the consultation. While it is for you to decide whether or not to agree to the recording, refusing permission to record may give the impression to a patient or their family members that there is something to hide. In cases of an overt recording, a doctor may wish to consider requesting a copy of the recording, to keep within the patient’s medical record.
▶ It may indicate a level of distrust.
▶ It may interfere with the natural flow of conversation.
▶ If a copy is requested, storage of the recording in line with the General Data Protection Regulation (GDPR) must be adhered to.
▶ With modern artificial intelligence editing tools, it is more and more common for recordings to be edited and manipulated.
▶ They assist patients and their family members in the recall of information.
▶ Less likelihood of concern that the doctor has something to hide.
▶ The potential to reduce or defend complaints and claims.
Generally, where there is any recording taking place, the consent of all parties to the recording should be obtained. However, it may be difficult to prevent patients and their family members from making covert recordings. There is little a doctor can actually do to prevent a patient or family member from using the recording in any way that they choose, but a doctor may wish to ask the patient or family member not to disseminate the information, albeit their agreeing to do so cannot be guaranteed. It is advisable that a doctor documents any discussions that they may have with a patient and family member regarding this matter in their medical record.
There is a strong argument to suggest that patients and family members do not need to seek a clinician’s consent before recording a consultation because they are primarily processing their own personal information. Where the patient is recording only their own personal and medical information for personal use, this activity falls outside the scope of the GDPR, making a doctor’s right to request erasure under Articles 17-to-19 of the GDPR not absolute. Because the data being recorded in the consultation is confidential to the patient and not to the doctor, the patients are essentially free to do as they like with their own data. However, if a doctor were to record the same consultation, articles 17-to-19 of the GDPR would then apply to that recording, and it would be considered part of the patient’s medical record.
Although the act of a patient recording their own personal data during a consultation may not fall foul of GDPR, there are other rights and laws that may limit what a patient can do with the audio recording. For example, if the recording included a doctor’s own personal information, the doctor’s constitutional right to privacy or rights under Article 8 of the European Convention on Human Rights may limit how the patient could use the recording. If the recording were altered or edited such as to potentially damage the reputation of a doctor, publication of the recording could be the basis for a claim for defamation. Equally, repeated recording or persistent use of recordings to bully or abuse online could amount to the offence of harassment and lead to a potential criminal investigation.
In Irish law, it is currently not illegal to record a telephone conversation if one of the parties to the call consents to the recording.
The current definition of “interception” as per the Postal Packets and Telecommunications (Regulation) Act 1993 infers that only single party consent is required to record telephone conversations in Ireland, rendering a recording legal and admissible. Single party consent means that it is not illegal to record a telephone conversation if one of the parties to the call or conversation consents to the recording. Therefore, in Ireland, one party may choose to record and the other party need not agree or even be informed of it. Thus, it is understood that the recording of consultations is not illegal and recordings may be used as evidence in court, provided that the recordings are relevant, the person recording is a participant to the conversation or has consent from at least one participant from the conversation. However, it is important to note that this is case specific.
Without any legislation that prohibits a patient from making a recording of their personal medical consultation, it may be advisable for doctors to start by having an open and honest conversation with the patient to uncover any genuine reasons the patient or family member may have for wanting to record a consultation.
Doctors may wish to use this opportunity to explain why they are uncomfortable having the consultation recorded and to explore the alternative options to recording the consultation, such as speaking more slowly, using visual aids, having a relative or friend in the room or writing to the patient after the consultation.
If a patient refuses to stop recording the consultation, it is never recommended to end a consultation abruptly. In addition to the continuing duty of care to act in the best interests of the patient, terminating the consultation before assessing the needs and circumstances of the patient could introduce a risk that the patient may come to some harm if they have a serious or urgent condition. A refusal to proceed with the consultation is indeed also likely to be recorded and may only serve to give the patient cause to complain about the doctor.
If the patient plans to record all future consultations despite the doctor’s objections, it is important to consider whether the patient’s actions demonstrate a breakdown in the relationship of mutual trust and confidence that exists between a doctor and patient. Although the act of recording a consultation may not of itself be enough of a reason to ask the patient to find a new doctor, if the doctor-patient relationship has broken down irretrievably it may be in the patient’s best interests to be seen elsewhere.
Finally, in an era of increasingly inconspicuous recording devices, covert recording should be expected in society. Although it can never be guaranteed that such recordings do not work against health professionals, it is helpful to act with courtesy and professionalism at all times if faced with this scenario.
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