The question of whether
or not you can or should record conversations during consults arises fairly
We recently wrote about the legality of recording workplace meetings. The next
natural question is what about recording consultations?
As a doctor, you may wish to
record a consultation or conversation yourself, or you may have questions about
patients recording consultations.
Whether or not this is
permissible is a complex question as every state has slightly different
legislation about what is allowed, depending on the circumstances.
Would a recording be helpful?
One widely cited paper on
patients’ ability to accurately recall clinical information suggests that up to
80% of information provided by healthcare providers may be forgotten
immediately and much of what is recalled may be incorrect.
If a patient is distressed, or
has communication difficulties, or simply wants a record of the discussion, it
may well be in everyone’s interests for them to have a record of what was said
so they can review it, clarify any questions and make sure they understand your
If you think an audio
recording may be useful, you may wish to take control of the process. In this
case, you may choose to offer to record the consultation yourself. This should
be raised with the patient at the start of the consultation. If they agree and
a recording is made, the recording should be stored in your clinical records.
Setting limitations on use of recordings
The file of the recording will
be very easy to share so you should be clear with the patient about the
purposes for which you agree it may be used.
It may be for them to keep for
their own purposes and to listen to with family members, to clarify your
medical advice, but not for publication.
It is wise to have the patient
agree to this in writing, confirming the details of the file provided and the
limits on its use.
This should be kept with the
if you refuse permission to record?
If you are uncomfortable with
the consultation being recorded, you are entitled to decline.
Many practices now have signs
asking people to silence phones in waiting rooms and turn them off in
But if a patient or support
person asks whether they can record the consultation, it is better to try to
understand their reasoning, rather than issue a blanket refusal.
After discussion, you may be
happy to agree or you may offer to provide a letter or copy of your notes or
some written information to the patient as an alternative.
If a patient starts to record
a consultation without permission, or if you discover that a patient has
published a recording without consent after the consultation, you may have a
legal remedy. But you need to act with caution as this is a complex area of the
law and each state’s legislation is slightly different.
If a party to a conversation
records it without the other party’s permission, that may be an offence,
depending on which state you are in. All states have some form of legislation
regulating the use of listening devices, which include recorders on mobile
A patient secretly recording
his consultation with a GP was found to be an offence in a NSW decision (Toth v
Director of Public Prosecutions  NSWCA 133).
Secret recordings have also
been considered in employment cases, where there has been discussion of these
recordings “shattering the trust and confidence necessary to maintain that relationship”.
Arguably this would also apply in a doctor-patient setting.
Unfortunately, there may be
some patients who breach your trust by making a surreptitious recording and
this may lead to the treating relationship coming to an end.
For the most part, however,
the request to make a recording will be for good reasons and it is important to
understand these reasons and reach a compromise.
In summary, the law in this
area is complex. Some states impose significant penalties, including prison
sentences for making or publishing unlawful recordings.
However there is also a range
of exceptions, so it is important to seek advice before you act, or react.
Even if you believe the law is
out of step with available technology, it remains important to work within its
- If you want to record a patient interaction, ask at the beginning of the consult, explain why and document any consent or disagreement.
- Store any recording in the
- If a patient asks to make a
recording and you decline, you should explain why, and offer alternatives. If
you agree, you may wish to make the recording yourself.
- Make sure to document in the
clinical records any restrictions on the use of the recording and provide a
written statement setting these out for the patient.
This article was
originally published in Medical Observer on 3 May 2018.
You can read more about patients recording consults in our article
doctors’ consultations: where do you stand?”. We also discuss
recording workplace conversations in “Under cover: can you record workplace meetings?”.
For more medico-legal information and support, visit our website or call our Medico-legal Advisory Service (MLAS)
on 1800 128 268
for expert advice, 24/7 in emergencies.
Journal of the Royal Society of Medicine 2003; 96:219-22.
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