Recording of Consultations

While such a request raises important issues of trust and consent, there may be circumstances where a recording may facilitate or enhance a patient’s care; for example, a patient with a new diagnosis of cancer where the purpose of the recording is to assist in the recall and sharing of information about prognosis and proposed treatment. In such scenarios, recordings can be a useful information aid and may significantly improve the transfer of medical information to patients.

Is a patient able to make and use a recording of a consultation?

There is specific legislation enacted in each state and territory that regulates the making of a recording of a “private conversation”, and the communication and publishing of that recording (see Table 1). A consultation between a patient and doctor would be considered a private conversation for the purposes of the legislation.

From time to time, MDA National receives calls from Members after a patient has recorded a consultation in a clandestine manner and posted this information online. Depending on the jurisdiction, the express or implied consent of all the parties to the conversation may be required to make a recording of that conversation. This issue of consent also arises in relation to communicating or publishing the recording. While in some jurisdictions the consent of all parties is needed, this is not consistent across all states and territories. Specific advice should be sought based on your circumstances.

Table 1: State legislation regulating the making and use of audio recordings
Queensland	Invasion of Privacy Act 1971
New South Wales	Surveillance Devices Act 2007
Victoria	Surveillance Devices Act 1999
South Australia	Listening and Surveillance Devices Act 1972
Western Australia	Surveillance Devices Act 1998
Northern Territory	Surveillance Devices Act 2007
Tasmania	Listening Devices Act 1991
Australian Capital Territory	Listening Devices Act 1992

What should you do if a patient asks to record the consultation?

As a first step, you should consider the intention, or the reason, for the patient’s request to make the recording. Surveys of Australian doctors suggest issues such as patient confidentiality and medico-legal concerns have been raised as reasons for reluctance to agree to recording of consultations. While it is understandable to feel a level of suspicion when receiving such a request, studies show that there are benefits associated with audio recordings of consultations, including greater patient satisfaction and improved recall of information.¹ If you agree to the consultation being recorded, you may wish to ask the patient for a copy of the recording so that it can be placed in their medical record to form a permanent record.

If you feel uncomfortable with the request, you should express that discomfort to the patient and inform them that you would prefer not to have the consultation recorded. Another option in these circumstances is to offer to provide the patient with a written summary of the consultation or invite them to have a family member or friend present during the consultation. If the patient is insistent and you feel uncomfortable to proceed, it may be necessary to end the consultation and inform the patient that they will need to see another doctor. Before doing so however, you must be satisfied that the patient’s presenting complaint does not require urgent treatment. If urgent treatment is required, you have a duty and a professional obligation to provide medical care as reflected in the Medical Board of Australia’s Good Medical Practice: A Code of Conduct for Doctors in Australia² irrespective of the circumstances surrounding the consultation.

For advice and further information, you can contact our Medico-legal Advisory Service on 1800 011 255 or email advice@mdanational.com.au.

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1.Tattersall MHN, Butow PH. Consultation audio tapes: an underused cancer patient information aid and clinical research tool. The Lancet Oncology 2002; 3:431-37. Ong LML, Visser MRM, Lammes FB et al. Effect of providing cancer patients with the audiotaped initial consultation on satisfaction, recall and quality of life: a randomised, double blind study. J Clin Oncol 2000; 18:3052-60.

2. medicalboard.gov.au/Codes-Guidelines-Policies.aspx