Recording Consultations: Is this the future?

Has a patient ever asked you:  “Can I record our consultation?” Or have you ever become aware that a patient has covertly recorded a clinical interaction?

How did you respond?

A recent survey suggests that up to 15% of patients have secretly recorded a clinical encounter and 69% of patients indicated a desire to record clinical encounters. Patients were motivated by the wish to re-listen to and/or share the recording with others. Some patients were motivated by a desire to “own” a personal record and others by its potential use as verification of a poor healthcare experience.

Reported benefits of recordings for patients include better information recall and understanding, improved compliance, greater empowerment and increased satisfaction.

What does the law say about recording consultations?

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.

In the future, will we be routinely asking to record?

Video recordings of many medical procedures is already occurring. Some doctors are encouraging their patients to take “medical selfies”.

As the technology continues to improve, the recording of doctor-patient interactions may become routine with the doctor and patient each retaining a copy. Indeed, from a medico-legal perspective these recordings may be an invaluable “medical record” especially in those disputes where there is a difference in recollection between doctor and patient.

What do you think?

This blog contains general information only. We recommend you contact your medical defence organisation or insurer when you require specific advice in relation to medico-legal matters.