Watch out for these pitfalls when recording your consult
Ruanne Brell, BA LLB (Hons), Senior Legal Adviser, Advocacy, Education and Research, Avant
Monday, 16 November 2020
It’s something GPs regularly hear, especially in the age of telehealth: “Sorry, doctor, I’m really not taking any of this in. Do you mind if I record it so I can listen to it later?”
Recording consultations is an issue that crops up fairly often.
Previously, the question has mostly been about recording face-to-face consultations.
The dramatic rise in consultations being conducted via technology since the COVID-19 outbreak adds another dimension.
The main point is that as long as you and the patient both agree, having an audio recording can be helpful, but it is important to discuss the implications before anyone presses the button.
Improving patient recall
Distressed patients are generally less likely to be able to accurately recall clinical information.
Research continues to suggest that having a recording of a consultation can help patients’ recall and understanding.
Recordings may also be linked with improved patient satisfaction and potentially better health outcomes.
They may assist when patients have communication difficulties. And they may also be useful when patients are distracted, struggling to recall the details of a complex diagnosis or treatment, or concerned about explaining it accurately to their family.
Evidence of the consultation
Having a recording also may be good evidence if there is ever any disagreement about what happened during a consultation or what you told a patient.
It does not replace the need to make contemporaneous notes in the clinical record, given the legislative requirements regarding medical record keeping.
However, being recorded may also change the patient’s demeanour or approach during a consultation, particularly if discussing sensitive topics, or it may prevent a patient from raising concerns.
So, a recording will not be appropriate for certain consultations.
If you want to confirm a discussion with a patient, you should write to the patient or have printed material to provide them after a consultation, rather than to make an audio recording of the consultation for that purpose.
Is recording a consultation legal?
The law on recording conversations is complex, and different in every state and territory.
Recording consultations conducted via technology means another layer of federal legislation may apply.
As long as both parties agree, it is legal in all jurisdictions for someone who is a party to the conversation to record it.
If there is agreement to record the consultation, it is important also to agree how the recording may be used. It is also important to document this agreement.
It is likely to be more practical to state this at the start of the recording, but you should also make a written record so there is separate documentation that an audio recording was made.
Both you and the patient should get a copy of the recording and you need to keep your copy securely in the patient’s clinical record.
Before offering recordings to patients, you should check with your medical software provider about how to save the file into the patient’s record.
Once the recording has become part of the clinical record, you cannot delete it, so you should let the patient know this before starting to record.
Never attempt to record a consultation without the patient’s permission.
In some states, recording a conversation without permission of the other party is an offence punishable by fines or imprisonment.
Even when it is not illegal, surreptitiously recording conversations in the employment context has been seen as shattering the trust and confidence necessary to maintain an employment relationship.
Clearly, trust and confidence are cornerstones of the doctor-patient relationship, and any covert recording of a consultation could be considered unprofessional conduct or professional misconduct.
Can you refuse permission to record?
If you are uncomfortable with the consultation being recorded, you are entitled to decline.
If you discover a patient has recorded a consultation without your knowledge, it may be appropriate to terminate the doctor-patient relationship.
You would still need to facilitate continuity of care and treat the patient yourself in a clinical emergency or where the patient may be at risk of harm.
You may also have a legal remedy. In NSW, a man was convicted of an offence under the NSW legislation when he used a concealed device to make an audio and video recording of a consultation with his GP in 2010.
However, in some states, a party to the conversation can legally record it without needing permission from the other party.
In most states, recording is only prohibited if the conversation is private and parties would not expect it to be overheard.
For example, the Federal Circuit Court recently found that a conversation recorded when parties were in a public place (standing in the street outside their home) was not private and recording it was not prohibited by the legislation.
This is another reminder of why it is always important in a telehealth consultation to consider patient privacy and check whether there is anyone there with the patient.
You may also want to check with the patient that any recording function on the platform has been switched off, especially if it is their first time using the technology.
Store recordings securely
A data breach incident in the UK in June involving recordings of consultations is a timely reminder of the security and privacy obligations associated with recordings.
The firm behind a GP video appointment app discovered that one of its users inadvertently had been given access to around 50 video recordings of other patients’ consultations.
When conducting consultations via telehealth, doctors are required to take reasonable steps to protect the privacy and security of the information they hold.
This means that you need to satisfy yourself that the platform you choose has adequate security measures to ensure your patients’ health information is protected.
Make sure any recordings are stored securely in your patient record system and not left on a device.
- If you want to record a patient interaction, ask at the beginning of the consult, explain why and document any consent or disagreement.
- Be sure to document in the clinical records what you have agreed when it comes to how the recording can be used. Keep a copy of any recording and store it securely in the clinical record.
- If a patient asks to make a recording and you decline, you should explain why, and offer alternatives.
- If you agree, it is best to make the recording yourself and provide a copy to the patient. A recording does not replace the need to make contemporaneous notes in the clinical record.
This article was originally published in AusDoc. on 6 July 2020.
IMPORTANT: This publication is not comprehensive and does not constitute legal or medical advice. You should seek legal or other professional advice before relying on any content, and practise proper clinical decision making with regard to the individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgement or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Avant is not responsible to you or anyone else for any loss suffered in connection with the use of this information. Information is only current at the date initially published.