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) 
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
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
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.
options are to provide a written summary of the consultation and/ or arrange
for a family member to attend the consultation and take notes.
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.
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