Hey Doc, I'm Recording This Consultation

I don’t think this was done with any bad intent, but only to enable them to listen to it later in case things were forgotten due to the shock of bad news. Can you give me medico-legal advice on how to handle such a situation in the future?

With the ease and availability of technology, it’s becoming increasingly common for patients to ask to make a recording of a consultation. 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.

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

In the Northern Territory, Queensland and Victoria there is no prohibition under listening or surveillance devices legislation against recording a private conversation that a party is involved in. In other states and territories, it is an offence to record a private conversation, unless specific exceptions apply.  One of the exceptions is if all the parties to the conversation consent to the recording. Also, in the ACT, NSW, Tasmania and WA an exception applies where the recording is not made for the purpose of communicating or publishing the conversation to any person who is not a party to the conversation.

In every state and territory, the consent of all parties to the conversation is required in order to communicate or publish the recording to any third party. Therefore, it is illegal in Australia for a patient to share a recording of a consultation without the consent of their doctor.

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

As a first step, you should consider the intention and the reason for the patient’s request. Surveys of Australian doctors suggest issues such as patient confidentiality and medico-legal concerns have been raised as reasons for reluctance to agree to audio recording of consultations. While it’s understandable to feel a level of suspicion when receiving such a request, studies show there can be benefits associated with audio recordings of consultations, including greater patient satisfaction and improved recall of information.¹

However, many doctors feel that recording will make them behave differently during the consultation. 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. One option, in this situation, is to offer to provide the patient with a written summary of the consultation, or to invite them to have a family member or friend present during the consultation.

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

Dr Sara Bird
Executive Manager, Professional Services
MDA National

Reference

1. Pitkethly M, MacGillivray S, Ryan R. Recordings or Summaries of Consultations for People with Cancer. Cochrane Database of Systematic Reviews 2008, Issue 3. Art. No: CD001539. Available at: ncbi.nlm.nih.gov/pubmed/18646075