Advances in technology mean that it is now possible for patients to record and video consultations on their mobile phones with ease. This can be done overtly with prior discussion with the doctor or covertly without permission.

A patient in the USA successfully sued for $500 000 (R6 861 805) after he recorded doctors making negative remarks about him, while he was under anaesthesia.

If a patient wishes to record a consultation, it is common courtesy for the patient to ask permission, however they don’t have to do so. Recordings can be a valuable ‘aide-memoire’ for complex treatment regimens or aid the patient in understanding a difficult diagnosis.

There may therefore be good reasons why a doctor would agree to this, the first step would be to ask the patient for the reason behind their request, says Gabrielle Pendlebury, medicolegal consultant at Medical Protection.

If you still feel uncomfortable at the prospect of a recording, having explored the patient’s reasoning, you should express your discomfort and tell the patient that you would prefer the consultation not to be recorded.

RECORDING WITHOUT CONSENT

According to current legislation, recording without consent is only unlawful, if you do not fall under the exceptions listed in the Regulation of Interception of Communications & Provision of Communication-Related Information Act (RICA).

“These exceptions include where you are a party to the communication, you have the written consent of one of the parties to the communication, or the recording is in connection with the carrying on of business (in which case more specific requirements apply).”

“You are a ‘party to the communication’ if you are the sender, the recipient, or any person included in the communication (such as being copied in on an email).”

A patient is therefore able to legally record a consultation with or without the permission of the doctor. You can’t decline the patient’s request if they insist. On a brighter note, if a consultation is carried out in a professional manner, then there shouldn’t be any medico-legal issues that arise from the consultation being recorded.

A recording will often be protective of most doctors’ professional welfare. Whatever your views on recording, you still owe a duty of care to the patient. Therefore, even if you prefer not to be recorded but the patient is insistent, it would be inadvisable for you to refuse to proceed with a consultation because the patient wishes to record it. Otherwise the patient might come to harm if they were suffering from a serious or urgent condition.

You have a duty to act in their best interests, to assess their condition, and offer any necessary treatment or advice. Medical Protection would advise you to conduct the consultation as you normally would to avoid making it more challenging and increasing the risk of error. It would be prudent to ask for a copy of the recording so that it can be placed in the patient’s notes to form a permanent record.

It should provide an accurate, contemporaneous record. Patient recordings could assist you if the consultation becomes the subject of a claim or complaint. If you act in a professional manner, there should be no reason to fear being recorded.

SECRET RECORDINGS

As noted above, patients can and may record a consultation without the doctor’s consent, because the information is personal to them and they are party to the communication. If someone records a conversation covertly, you won’t know about it, so focusing on having good, professional consultation skills should be any doctor’s priority.

On occasion, the matter will be brought to the doctor’s attention, if the patient returns with the recording and has an issue with its contents. You may wish to challenge the politeness of someone recording without your consent, but there are no sanctions you can take, though you can explain to the patient that it does erode the trust implicit in a good doctor-patient relationship.

A consultation should not be terminated if a patient is found to be recording it. Instead, it is an opportunity to explore whether the patient has any concerns about their care or has a lack of trust in their treatment. 

RECORDING BY DOCTORS

Patient consent must be obtained when a recording is undertaken as part of the patient’s investigation or treatment. Doctors should explain to the patient why a recording would assist their care, what form the recording will take, and that it will be stored securely within their medical records.

DOCUMENTATION OF CONSENT SHOULD BE KEPT WITH THE RECORDING

Recordings of consultations have been an integral part of general practice training for some time. Its purpose is to assist doctors in improving, and assessing their consultation skills.

Consent must be sought before making recordings for teaching, training or assessment.

Patients should be given enough information as to the purpose of the recording, who it will be shared with, how long it will be kept, how it will be stored and when and how it will be subsequently destroyed. Patients must also be reassured that they can withhold or withdraw consent and that it will not affect the quality of their care.

It is likely that technological advances and the ability to record easily with mobile devices will lead to increasing requests from patients to record consultations. Your medical defence organisation, can offer further guidance if you have any concerns about requests from patients to make recordings of consultations.