The pervasiveness of smartphones and smart devices means that it is possible for anyone to record almost anything. There are undoubtedly benefits to ensuring that magic moments get captured. However, when it comes to formal meetings and consultations, there is a general reluctance to agree to any such recording. And with some minor exceptions, it is certainly not encouraged.
Medisec has observed an increasing number of queries from doctors looking for advice on where they suspect or know that their consultations have been recorded. Of course, because of how prevalent these devices are and how quick and easy they are to use, it is likely we are only hearing about a small fraction of the consultations that may have been recorded without the doctor ever realising it.
Every patient and every situation is different, but a typical scenario we hear about involves the patient secretly using their smartphone to make an audio recording of an in-person consultation with their doctor. The recorded discussions invariably include details about the patient’s symptoms or condition and the advice given by their doctor.
Often, the first question we get is whether it is legal for a patient to record their consultations with a doctor. Where the patient is recording only for their own personal and medical information for personal use, this activity falls outside of the scope of General Data Protection Regulation (GDPR). The logic for this being that the data the patient is processing by recording the consultation is their own confidential data and not the doctor’s confidential information. For this reason, the patient is free to do as they like with their own data. If the doctor was to record the same consultation, GDPR would apply to that recording.
Although the act of a patient recording their own personal data during a consultation may not be contrary to 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 the doctor’s own personal information, the doctor’s constitutional right to privacy or rights under European Convention on Human Rights may limit how the patient could use the recording.
If the recording was altered or edited such as to ridicule and damage the reputation of the 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.
Opinion of the courts
There is no general rule on the admissibility of covert recordings. Courts and regulators both in Ireland and the UK have appeared reluctant to exclude evidence solely on the basis that the record may have been obtained covertly. As long as the recordings are considered to be ‘relevant and probative’, it would appear they are likely to be admitted into evidence.
There have been several recent examples in Ireland of the courts admitting covert video and audio recordings into evidence, most notably the covert RTÉ Investigates recordings from the Áras Attracta nursing home in 2015 and, more recently, the Special Criminal Court permitted covert recordings be used in the prosecution brought against Gerard ‘The Monk’ Hutch relating to the shooting of a rival gang member in the Regency Hotel. Covert recordings of conversations which took place in Northern Ireland, which the Gardaí had no legal power to carry out, were still admitted into evidence as there was no mala fides on the part of the Gardaí, nor were they aware that their actions were illegal at the time. Forensic checks by IT experts will often be required to ensure the recordings have not been altered or edited in any way.
Should doctors embrace recording of consultations?
Many within the medical profession believe doctors should embrace the recording of consultations. They point to genuine reasons why a patient may wish to record a consultation – such as where they have difficulty hearing, understanding or retaining information or advice imparted by their doctor during the consultation. Support for this view can be found in various studies carried out in the US and the UK, which suggest that patients immediately forget between 40% and 80% of what they were told during a consultation, and that up to 50% of what is remembered is incorrect.
Those embracing the recording of consultations also argue that far from being something to fear, a reliable recording of a consultation will in fact protect doctors by providing proof of their professional and ethical conduct. If the patient has made a recording of the consultation, it is advisable to request a copy for the patient’s chart. As well as supplementing the contemporaneous notes taken by the doctor, having a copy can also eliminate some of the fears that may exist about editing or tampering with the recording, or somehow misrepresenting what was said.
A significant number of doctors, if not the majority, do not welcome the idea of audio recording of consultations. Some find the idea of a recording device in the room an unnecessary distraction from delivering good medical care, similar to the speaker forgetting some or all of their lines when a microphone is put in front of them. Others quite fairly point to the fact that audio recordings do not fully capture everything from a consultation, such as the look and feel of a symptom (perhaps a bruise or a rash) or the non-verbal communications that are an important part of the consultation. For others, there is a fear about how a recording may be used or misused.
This latter grouping tends to regard it as a breach of the doctor-patient relationship of trust and confidence for the patient to record a consultation covertly, contending that there are more acceptable ways of addressing any genuine reasons why a patient might be tempted to press the record button.
What can a doctor do to prevent a recording?
Without any legislation that prohibits a patient from making a recording of their personal medical consultation, the issue becomes what can or should doctors who do not want their consultations recorded do when they find themselves in this position.
As a starting point, before assuming an improper motive, we would always advise doctors who find themselves in this situation to start by having an open and honest conversation with a patient so as to uncover any genuine reasons the patient may have for wanting to record a consultation. It is worth remembering that the reason could well be a source of embarrassment for the patient.
It is also an opportunity for the doctor 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.
While you may be prepared to permit a patient to record a consultation taking place in a consulting room, or other private area of the hospital, it would be important when you are consulting with a patient on a ward or in a more public space to ensure that the patient is aware that they should not be recording other patients’ confidential consultations.
Breakdown of trust
If the patient refuses to stop recording the consultation, it is undoubtedly a difficult situation for a doctor to contend with. However, we advise against terminating the consultation there and then. 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 would introduce a risk that the patient may come to some harm if they have a serious or urgent condition. From a practical perspective, a refusal to proceed with the consultation is 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.
The Medical Council recognises that good care depends on doctors working together with patients with mutual respect. 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 by another doctor.
As every patient and every situation can be different, we suggest that any doctor who finds themselves in this situation contact their indemnifier for advice that is specific to their situation.