Medico-legal - Patients who record their consultations

The proliferation of smartphones offers patients the means to record consultations with their GP. MDU medico-legal adviser Dr Phil Zack looks at the implications.

Patients do not need GP's permission to record their consultation
Patients do not need GP's permission to record their consultation

The prospect of a patient recording their consultation with you may seem quite alarming, but it would be a mistake to assume their actions have a sinister purpose. It may even be to your advantage.

Case study

A patient who was not registered with a GP practice presented with stomach pains. After a few minutes with the patient, the GP became suspicious because the patient was speaking loudly and had positioned a holdall on his lap. The patient admitted he was covertly recording the consultation because he often struggled to understand what he was told by doctors. He explained that he had tried to hide what he was doing because another GP had refused to treat him when he asked permission to record proceedings. The GP suggested that the patient record the consultation openly and allowed additional time at the end for him to ask questions.

Effective communication

Research has repeatedly shown that patients forget much of what they are told by their GP as soon as they leave the surgery.

One study suggested that patients immediately forget 40-80% of the medical information provided by their doctor and almost half of the information they recall is incorrect.1 The problem is worse if the patient is not fluent in English, or has hearing difficulties or learning disabilities.

Some patients try to take notes during a consultation but even then, they may be so busy writing, they will not have the chance to think of questions or get the reassurance they may need.

By recording a consultation to listen to again later, patients are less likely to miss something important. One doctor explained to a national newspaper earlier this year why he had no objection when a patient asked to record a consultation on his smartphone: 'In the case of the chap who filmed me, I was discussing the ramifications of various surgical options. There were facts, figures and side-effects to digest. By filming me, it meant he could do this in the comfort of his own home and weigh up the options at his own pace.'2

Patients who understand the risks and benefits of their treatment options are usually able to make an informed decision about the treatment they want, which makes life easier for them, and for their GP when it comes to obtaining consent.

It is also worth bearing in mind that the GMC expects you to 'give patients the information they want or need to know in a way they can understand. You should make sure that arrangements are made, wherever possible, to meet patients' language and communication needs.'3

Covert recording

What if a patient starts recording you without asking permission, or decides to record a consultation covertly, as has happened to a number of MDU members recently?

Can you refuse and are their actions a sign that your professional relationship has broken down?

Although the GMC expects doctors to obtain patients' consent to make a visual or audio recording,4 patients do not need their doctor's permission to record a consultation, because they are only processing their own personal information and are therefore exempt from data protection principles.

Section 36 of the Data Protection Act states: 'Personal data processed by an individual only for the purposes of that individual's personal, family or household affairs are exempt from data protection principles and the provisions of parts II and III.'

If you suspect a patient is covertly recording you, you may be upset by the intrusion, but your duty of care means you would not be justified in refusing to continue to treat the patient. If you did, it could rebound on you and further damage your relationship with the patient. Remember that your refusal to continue with the consultation could be recorded.

A more pragmatic response might be to invite the patient to record the consultation openly and ask them whether you can have a copy of the recording, which can then become part of the patient's medical records. In seeking their consent, you should reassure them the recording will be stored securely by the practice and only used for this purpose.

It is understandable to assume the worst when a patient tries to record their consultation, but their behaviour should not pose a problem.

It would be a mistake to think they are trying to catch you out or that a complaint or claim will inevitably follow. If you are concerned that the patient's actions are a sign they do not trust you, you may want to discuss this with them at a later date, but recording a consultation is not itself sufficient reason to end your professional relationship with them.

Admissible evidence

Be aware that recordings (even those made covertly) have been admitted as evidence of wrongdoing by the GMC and in court. However, they can also prove the opposite. If you have acted ethically and professionally, you should have no reason to worry.

  • Dr Zack is a medico-legal adviser at the Medical Defence Union

References

1. Kessels RPC. Patients' memory for medical information. J R Soc Med 2003; 96(5): 219-22.

2. Eden C. Why I believe patients should film consultants on their phones. Daily Mail, 9 July 2013.

3. GMC. Good medical practice. April 2013. Paragraph 32.

4. GMC. Making and using visual and audio recordings of patients. April 2011. Paragraph 54.

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