More and more people are choosing to record conversations and life encounters today – whether it be an office conversation or a doctor’s appointment.

If you are a doctor, there is a very high chance that one of your last 10 patients recorded their visit – with or without your permission.

Back in 2014, there was a criminal case in Australia where a patient video recorded a consultation without the doctor’s consent (see the full case here). The patient was found guilty in recording a private conversation without consent. Some patients have been known to have posted some of these recordings online also.

Why are you being recorded?
Generally, it is not because your patient is looking for a lawsuit. Many patients walk out of their general practitioner’s office unclear on what they were told and what they are supposed to do. In many cases, patients use the recordings to remember important details about their office visits. But why will some patients opt to record you secretly? Perhaps they are not aware that this may bother you or break any laws, they are too shy to ask, or they may be afraid that you will say no. Whatever the reason, many patients are doing it. The main problem that doctors are facing is the fear that recordings can be used against them in a lawsuit which ultimately places a strain on the doctor-patient relationship.

Is recording these visits illegal?
In Australia, there is a specific State/Territory legislation relating to audio recordings of private conversations and whether the consent of all parties is required. In all jurisdictions except Victoria, Queensland and Northern Territory, it is illegal for patients to record your consultation without your permission and doctors with concerns could advise their patients of this.

If a patient asks to record a consultation – what should I do?
It may be concerning to you if asked by a patient to record the visit, but as a doctor, you have the option to decline the recording. Should you be suspicious of a patient’s intentions or if you believe the professional relationship has been compromised, another option might be to terminate the patient-doctor relationship. If you would prefer not to be recorded, but the patient is insistent, you naturally still owe a duty of care to the patient to assess their condition and offer a necessary treatment.

If the consultation were to be recorded, it would be sensible to ask for a copy so that it can be added to the patient’s notes to form a permanent record. Modern medical records are in a variety of formats, including text messages and emails to and from patients, recordings could become part of this mix.

How can you protect yourself and your reputation?
Being recorded in a consultation room should not affect the way you deliver your care. As a doctor, you should always behave in a responsible and professional manner in consultations and consequently, any recording will provide concrete evidence of that. Ultimately, this can become an invaluable tool in protecting yourself against unsubstantiated complaints or legal action. The recording could potentially provide even more detail to support your professional position. As a doctor, you would be aware any detailed record keeping is an invaluable asset in defence of any complaint or claim of an investigation against you.

Whilst some doctors may understandably feel that being recorded during a consultation may impair the doctor-patient relationship, this may well simply be a matter of adapting to current cultural and societal norms where it is becoming commonplace for the public to record and publish on the internet. Technological advances will undoubtedly bring further changes and in the years to come recording, with copies being held by both parties, may become the norm for all consultations.

Need some professional advice?
For more information or advice, please contact the East West team today to ensure that your medical indemnity insurances are up to date. Call us on 1800 809 132 or email us at hello@ewib.com.au

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