Mrs F is 80 and has terminal cancer. There has been some criticism of her care to date. This afternoon there was a family meeting, with her consent, to discuss future management. During the meeting, I realised that her son was covertly recording our conversation. I didn’t say anything to the family at the time, but what should I do?
The first thing to consider in this case is patient confidentiality. You need to confirm that the patient has given her consent to disclosure of information to her family. The Medical Council’s guidance states: “While the concern of the patient’s relatives and close friends is understandable, you must not disclose information to anyone without the patient’s consent.”
In this case, Mrs F has given consent to disclose information, as she was happy for her son to be present. However, a recording of the consultation could be shared elsewhere. Section 32.1 of the Medical Council’s guidance states: “Audio, visual or photographic records of the patient, or relative of a patient, in which that person is identifiable should only be undertaken with their express consent. These recordings should be kept confidential as part of the patient’s record.”
Express consent of any family members taking part in the consultation should be obtained prior to the start of any recording. Can you be sure that Mrs F consented to the recording, and that the recording will be kept securely and confidentially afterwards? As a doctor, you would not be allowed to record any consultation with the patient, except in accordance with section 32 of the Medical Council guidance, where you obtain the prior express consent of the patient.
Section 98 of the Postal and Telecommunications Act 1983 clearly makes it an offence to record private conversations without the consent of the individuals involved. Section 13 (3) appears to allow for the recording of telephone calls where either party consents to its recording. Applying this to the scenario of recording a consultation between a doctor and patient, it would appear to allow for the recording with the consent of either the doctor or the patient, but not necessarily both.