Recording consultations

Quick guide

• Recording consultations can benefit patient communication and care, when it’s done within appropriate legal and professional frameworks.
• Assess requests to record consultations on a case-by-case basis. Do not feel pressured to agree to a recording, but avoid automatically declining request without considering the circumstances.
• You and your patient should always consent before a recording is made and agree on the purpose, use and where it will be stored. Document this discussion in the clinical notes.
• The recording forms part of the clinical record so ensure you store it securely in the clinical record. You can also provide a copy to the patient.
• If a patient asks to make a recording and you decline, explain why and consider alternatives such as the patient taking written notes or you providing a copy of a consultation summary or of agreed management points.

Complex legal framework

Patients may ask to record a consultation, or other interaction, for a range of reasons. In some cases, recordings can help patients better understand, recall and share information about their diagnosis or treatment.

However, recordings may be made in other contexts, such as where there are concerns about care, a breakdown in trust, or where the consultation forms part of a workplace or third-party assessment. Sometimes this is done covertly. This undermines the trust of the doctor-patient relationship, and may also breach the law.

A request to record a consultation can feel confronting. Doctors may be uncertain about whether recording is legal and its other implications.

This factsheet outlines the legal and professional framework for recording consultations.  The term “consultation” is used to refer to all patient interactions where recording may be relevant. However, it does not apply to any temporary audio file created by an AI scribe tool “listening” during a consultation to create a draft written structured clinical note for you to review and save. See Artificial intelligence (AI): what you need to know for more information.  

Is it legal to record a consultation? 

Specific legal requirements for recording private conversations and using those recordings are set out in the listening and surveillance devices legislation of each state and territory. Consultations are assumed to be private conversations and therefore covered by these laws. The laws are complex and various exceptions apply so it is always best to seek specific advice.

All state and territory laws prohibit anyone recording a private conversation they are not participating in without everyone’s knowledge and consent.

If everyone participating in the consultation consents, you or the patient can legally record it.

If there isn’t consent from everyone, then it will depend on the circumstances and the jurisdiction to determine whether a recording can legally be made and how it can be used. For example, in some jurisdictions, a patient could legally record a consultation without the doctor’s consent if it is for personal use only or if is not shared with anyone else.

As a doctor, however, you should always obtain consent from everyone before recording a consultation even if not strictly legally required in your jurisdiction. Covert recordings undermine the trust and confidence of the doctor patient relationship and may result in tribunal findings of unsatisfactory professional conduct against you.

If you are providing care via telehealth, Australian federal telecommunications laws may also apply. These and the Medical Board’s telehealth guidelines are discussed separately below.

You will also need to consider privacy laws given the recording will include health information.

How can a recording be used?

State and territory laws vary on whether specific consent is needed before a recording can be published. While the legislation refers to publication, this essentially means being shared with anyone who was not present.

Generally, recordings cannot be shared except where all parties consent. The various Australian jurisdictions have further exceptions including, for example, public interest, protecting lawful interests, use in legal proceedings, and preventing violence or property damage. It will depend on the circumstances as to whether any exceptions apply. There is limited case law in this area, especially in a healthcare setting.

The table below summarises the legal position in each state and territory, noting however that exceptions may apply in certain situations.

If you need specific advice about how the law applies to your circumstances, please contact our Medico Legal Advisory Service for further advice.

Considerations when recording or agreeing to a recording

In some instances, it may be helpful to record your consultation.  Where a recording is being made, it is generally preferable for you to make the recording using your own computer or other technology, as this will make it easier to retain and store as part of the patient’s notes. Some hospitals and healthcare settings now offer this as an option. If the technology or ability to save a recording into the patient’s file is not available, then explain this to the patient.

If a recording is made, you can offer to provide the patient with a copy of the recording. This should all be documented in the patient’s clinical notes.

Recordings as medical records

Check your organisation’s policies about making recordings and how to save them into the patient record.

You still need to make contemporaneous notes in the clinical record as the recording alone does not satisfy the legal requirements for clinical record keeping.

Documenting consent and usage

Always get explicit consent from patients and anyone else in the conversation before making a recording. Never assume consent from the context. If you capture verbal consent in the recording, also keep a separate note in the patient’s record to document a recording was made.

Also agree and document how the recording can be used.

AI scribes

A temporary audio file made by an AI scribe tool when “listening” to a consultation for the purpose of creating a draft note is different from an audio recording of the complete consultation.

It is not yet clear how listening devices laws apply to AI scribes. However, as the tools generally make some form of recording, even if only temporary, they may fall within the scope of state and territory listening devices legislation.

Since an AI scribe is collecting and storing health information, privacy principles also apply.

Professional standards confirm that you must have patient consent to use an AI scribe. See Ahpra’s guide: Meeting your professional obligations when using Artificial Intelligence in healthcare. 

Therefore, always seek explicit patient consent if you plan to use an AI scribe during a consultation and document this in the patient record.

For more information see: AI scribes – a checklist of things to consider

Telehealth

Australian federal telecommunications law makes it an offence to covertly record a telehealth consultation.
If you wish to record a telehealth consultation, always make sure you have explicit consent to record and document this in the clinical record. See the Medical Board of Australia’s Guidelines: telehealth consultations with patients.

For more information on privacy and telehealth see Avant’s checklist: Conducting a telehealth consultation.

Refusing a request

You are entitled to decline a patient’s request to record a consultation. It may assist to develop a policy within your practice about recording consultations, and how to manage requests from patients. If a patient asks to record a consultation, first understand the reasons for the patient’s request. Consider whether there is any other way their need can be met, for example offer a written summary or have someone else accompany the patient. Or it may be appropriate to offer a recording of a summary of your advice and instructions about next steps, rather than the complete consultation.

A disagreement about recording may also affect the patient relationship, so communicate clearly and openly about your concerns and alternatives.

If you become aware of the recording after the fact

Finding out that you have been recorded without your consent can be confronting, and can destroy the trust and confidence that’s at the heart of the doctor-patient relationship

Your response will depend on the circumstances. The patient may simply have assumed they could make a recording for their own use without considering the broader implications of doing so. Once you understand the reasons for the recording, you may be able to reach an agreement such as requesting a copy from the patient and agreeing on how the recording can be used or shared.

If you feel the recording is a breach of trust, you may feel you need to end the treating relationship after considering all relevant factors.

Whether you are considering recording a consultation yourself, responding to a patient's request to record, or dealing with a recording that has already been made, the legal issues can be complex. Contact Avant for advice about your specific circumstances.

Further resources

Avant factsheet - How to end the doctor patient relationship

Avant checklist - Conducting a telehealth consultation

Avant checklist - AI scribes: a checklist of things to consider