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Recording doctors’ consultations: where do you stand?

Jul 7, 2014

You are consulting a patient when they suddenly pull out their smartphone and begin recording your conversation so that they can review your advice. But, as a Doctor in Training (DiT), are you aware of the legal requirements associated with making these recordings?

With the increased use of mobile devices by patients, this scenario is becoming more prevalent.

These requirements were highlighted in a recent landmark NSW Court of Appeal decision, where the court upheld a finding that a patient committed an offence when he recorded a consultation without the doctor’s consent (Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133).

The patient, Andrew Toth, attended a consultation with his GP in Sydney, complaining of a possible hernia in his groin. Unbeknownst to the doctor, he had a pen with him that contained a concealed video recorder. Without the doctor’s knowledge or consent, he used his ‘pen’ to make a video and audio recording of the examination undertaken by the GP.  

Mr Toth was later charged with an offence under the Surveillance Devices Act (NSW) 2007 for using a “listening device” (the pen/recorder) to record a “private conversation”. 

While Mr Toth argued that the consultation with the GP was not a “private conversation,” because it may have been overheard by people in the reception area of the medical practice.  However, according to the Court of Appeal, there was clear evidence from the GP that she did not expect her conversation to be overheard, and as Mr Toth did not give evidence at the trial, there was “… no evidence to contradict the conclusion that both persons desired the words to be listened to only by themselves.” 

This case confirms that a consultation between a doctor and a patient is therefore very likely to be regarded by the courts as a “private conversation”, and covered by the state and territory legislation on surveillance and listening devices. This legislation varies across jurisdictions as to whether the consent of all parties is required to record a conversation, so it is important to check the relevant law in your state or territory.

Tips when a patient wants to record a consultation:
  • You are entitled to decline to give consent for the recording.  However, it is advisable to give some thought as to the reason for your objection – is it because it is a distraction or are you suspicious about the reason for the request?
  • Ask the patient why they feel the need for the consultation to be recorded – they may want to share the information with their family or it could be a sign that you need to take a bit more time to explain things with them.
  • Some doctors are concerned that the recording could be tampered with at a later date and used to misconstrue the advice provided in the consultation.  If this is a concern, you can request a copy of the recording for the patient’s file, or offer to record the consultation yourself and provide a copy for the patient.
  • Alternative options are to provide a written summary of the consultation and/ or arrange for a family member to attend the consultation and take notes.
Learn more

If you need more information or guidance on the recording of doctors’ consultations or another medico-legal issue, call the Avant Medico-legal Advisory Service on 1800 128 268.

Share your view

We welcome your feedback on this article – email the Editor at: editor@avant.org.au