Hidden devices – tackling the issue of recordings

Julie Baylis, Case Manager at Medical Protection, looks at a dilemma which is becoming an increasingly pressing concern for clinicians in the ever-evolving digital era.

"No, you may not record me"

“I am a practice manager and the practice has recently encountered an issue with one of our difficult patients. This patient has made numerous complaints over the past few years, all of which we have dealt with.

“Earlier today, one of the GP partners came to me with a concern that this patient had asked to record the consultation with their smartphone. This was a consultation where the GP was offering a tentative diagnosis of Parkinson’s disease and arranging for suitable referrals.

“The GP partner is understandably concerned about why the patient would want a recording of the consultation. The GP expressed that they believe the patient is compiling evidence for another complaint, which is sure to follow. Can we advise the patient that we will not allow patients to record the doctors when consulting and refuse to see her?

We are aware that patients asking to record consultations with doctors, whether that be a video consultation, telephone consultation or face to face in the practice, may be a cause for concern. It is understandable that a doctor’s first thought may be to consider that the patient may have an ulterior motive by doing so. It is understandable that when faced with a patient who wishes to record your consultation, that doctors may feel a desire to say: “No, you may not record me.”

However, this argument can be reframed into considering how this recording may actually be beneficial to both the doctor and the patient. It is easy to consider that the patient may be wishing to record the consultation for evidence for a complaint; however, this may also be to the doctor’s advantage.

Patients may want to record a consultation for a number of reasons. It may assist with their recollection of a discussion, particularly if it is complex, and allow them to listen back to the recording afterwards to ensure they did not miss anything of importance and take time to fully consider their options. The patient may also have learning difficulties or English may not be their first language, and this may assist the patient and their family members in their care and decision making.

It is not inconceivable that a patient may wish to use a recording to aid them in pursuing a complaint or claim against a doctor. However this would be an exceptional circumstance, and for a doctor who is acting professionally this would provide concrete evidence of this. A recording, along with the detailed medical records, may provide additional detail to support a doctor’s professional position. Therefore doctors who are acting in accordance with their professional, ethical and legal obligations should have no reason to fear such a recording.

It is our advice that if a patient asks to record a consultation, you should allow them to do so. This should not affect the manner in which you conduct your consultation. However we recognise that this may feel intrusive and doctors may feel uncomfortable with this prospect.

In the first instance, as a doctor, you could explore with the patient the reasons why they wish to make the recording and understand their reasons for requesting this. It may be helpful to consider such a recording as a tool to aid the patient in their understanding of their condition.

If you remain uncomfortable with this, and are still unhappy with being recorded, you could consider explaining this to the patient sensitively and tactfully. If the patient insists, it is crucial to remember that you still owe the patient a duty of care and to assess their condition along with offering any necessary treatment. A doctor should not refuse to proceed with a consultation if a patient wishes to record it. If a patient wishes to record a consultation, doctors may wish to consider requesting a copy of this and retain it in the medical records.

Camera shy?

“I am a salaried GP and it has come to my attention that a patient has been secretly recording videos during our consultations. This patient has been attending the practice regarding concerns they had about their moles. I have carried out several examinations now and I am very unhappy that they have been recording this.

“This patient has also been recording other patients in the waiting room and we feel a duty to protect those patients and ourselves as clinicians.”

The recent High Court case of Samantha Mustard v Flower and Others [2019] examined the legality of patients wishing to record doctors and whether this is a breach of the Data Protection Act 2018, or the General Data Protection Regulation (GDPR). This case involved a patient who was bringing a claim for compensation against an insurer for injuries sustained in a road traffic accident. During the medical examinations for use in her claim, the patient covertly recorded the consultations and did not tell the clinician or seek the clinician’s consent. These recordings were then transcribed and included as evidence in the proceedings. The insurer objected to this and attempted to argue that the making of the recordings covertly amounted to unlawful processing of data. One of the clinicians, stated that the records had made her feel professionally “violated, distressed, angry and disillusioned”.

The judge, whilst stating that the patient’s actions in recording the consultations secretly were reprehensible, rejected the proposition that the records were in breach of the Data Protection Act or GDPR. The judge concluded that disclosure of these records was not automatically prevented by GDPR under Article 2(c) as the recordings were made “by a natural person in the course of a purely personal…activity”. The judge went on to state: “Recording a consultation with or examination by a doctor would seem to me to fall into this category. I do not think that the claimant supplying the recordings to her advisers took it out of the category. The relevant data related to Ms M and not the Doctor.”

There is currently no legal prohibition to a patient recording a consultation, even when done so covertly, as they are processing their own personal information.

Where recordings (covertly or otherwise) have been made where third parties may be present or overheard, this may be considered an interference with third-party privacy rights under Article 8 of the European Convention on Human Rights. All patients have the right that no recording is made of them without their consent.

In this instance, the practice may wish to consider implementing a policy that prohibits recordings in an area where the privacy of patients may be breached, such as communal spaces and waiting rooms.

Time for fame – facing the public arena

“I really need advice regarding an audio clip that has been doing the rounds on social media. Our practice manager came across this and the patient has expressed dissatisfaction with how I spoke to them. They have clearly uploaded the recording of the consultation in question, which I did not know was being made at the time, as evidence for this.

“This was a particularly difficult consultation for myself and perhaps I was not in the right frame of mind at the time. I have reflected on listening to the audio clip and I believe I could have been more sensitive to the patient’s concerns and addressed the issue of her weight much more diplomatically in order to avoid causing offence. This is something I have learned from; however, I am really frustrated with this recording being online without my consent. How can I handle this?”

As the data subject, the patient is entitled to their personal information, and it is up to them how they wish to use this. There is no legal prohibition against the patient posting their own personal data (in the form of a consultation). Generally, such consultations are focused on the patient’s personal information and would not contain personal data or information about the doctor.

While there is no definitive case law on the matter, such action where a doctor feels that their own personal data has been breached may fall outside the personal use exceptions of the Data Protection Act and GDPR, and may also be an infringement of privacy rights.

Where a doctor is unhappy with a recording of their consultation being posted online, they may wish to consider directly discussing this with the patient, outlining their concerns and politely requesting that this be removed. The doctor should offer the opportunity to discuss this further and signpost the individual to the practice’s complaints procedure in the case where an expression of dissatisfaction has been made.

The takeaway

• Doctors should not refuse to allow a patient to record a consultation and there is no legal prohibition to this. We would encourage doctors to be open to patients recording consultations.
• It is advisable to request a copy of the recording to retain within the medical records.
• If a doctor considers their privacy rights may have been breached, they may politely request that this recording is removed from social media.
• Recordings of consultations can be a beneficial resource for both patients and clinicians.
• A patient recording a consultation covertly is not a justifiable reason to end the professional relationship alone. If you have concerns regarding the patient not trusting you, you may wish to discuss this with the patient and explore their concerns.
• Recordings, whether made overtly or covertly, can and have been admitted in legal proceedings and doctors who are acting professionally should have nothing to fear.