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Hidden devices – tackling the issue of recordings

07 November 2022

At Medical Protection we are frequently contacted by doctors who have a patient who has either recorded or wishes to record their consultation. Sinead Lay, Case Manager at Medical Protection, discusses the various considerations for doctors.

In this era of personal digital devices, there is increased opportunity for covert electronic recording of medical encounters by patients and families. Although this practice may be a consequence of underlying distrust between patient and doctors, if discovered it may ultimately lead to further breakdown of trust, negatively impacting ongoing medical care and further compromising a patient-doctor relationship.

Patient recording of consultations, whether covert or overt, presents both benefits and risks of harm. Practically speaking, recording consultations could assist some patients in remembering or better understanding recommendations provided by their doctors. It may also secondarily improve patient compliance and overall engagement in medical care, and help patients accurately communicate recommendations to family members and other caregivers who are not immediately available during the clinical encounter.

In an Ireland of days gone by, ‘old power’ was very much reflected in society’s culture. It was well known that the Gardai, the parish priest and the local doctor were to be both respected and feared in equal amounts. Fast forward to 2022, an era of ‘new power’ appears to be upon us. One might argue that such an era has been mostly fuelled by social media and in particular the platforms it provides for ‘free speech’ and outing or highlighting wrongdoings etc. Such free speech awakens the human psyche in terms of the feeling of empowerment it ignites.

This new power era could also be partly responsible for and feed into the reasons behind patients covertly or overtly recording consultations and interactions with once previously feared members of the community – patients may view these recordings as a mechanism for empowerment, allowing them to shift the power dynamic between patient and the healthcare professional if you will. As a result, this behaviour is mostly viewed as a threat by medical professionals but as a welcome and helpful innovation by some patients.

Covert vs overt

There are two distinct groups of patients and/or relatives who make recordings and these can be split into:

A. Those who ask permission before recording overtly.

B. Those who make recordings covertly.

When consultations are recorded both covertly and overtly, there is the potential for issues to arise when recorded comments are taken out of context or misinterpreted, leading to confusion on the part of the patient and/or family members. Overt recordings of medical encounters may also alter doctor decision-making. A feeling of ‘needing to appease’ during a recorded consultation may lead to more invasive or aggressive testing, unnecessary referrals and expense for the patient and, of course, the already overly-lean Irish healthcare system.

Even worse, covert recording of medical encounters (if discovered) may irreparably harm the doctor-patient relationship by introducing distrust, causing the doctor to potentially take a more defensive attitude in subsequent consultations with the patient and their family members.

With respect to a patient asking for permission to record a consultation, it would be helpful to explore and establish the reasons behind the patient’s wishes to record the consultation. It would ultimately be a matter for the doctor to decide whether or not to agree to the recording, but one must be aware that declining to agree to recording may give the impression to a patient or their family members that there is something to hide. In cases of an overt recording, a doctor may wish to consider requesting a copy of the recording, to keep within the patient’s medical record.

There may be both advantages and disadvantages of allowing a consultation to be recorded. Disadvantages are:

•  It may indicate a level of distrust.

  It may interfere with the natural flow of conversation.

•  If a copy is requested, storage of the recording in line with GDPR regulations must be adhered to.

  With modern artificial intelligence editing tools, it is more and more common for recordings to be edited and manipulated.

Advantages are:

•  They assist patients and their family members in the recall of information.

  Less likelihood of concern that the doctor has something to hide.

•  The potential to reduce or defend complaints and claims.

Generally, where there is any recording taking place, the consent of all parties to the recording should be obtained. However, it may be difficult to prevent patients and their family members from making covert recordings and further to that, it may indicate a breakdown of trust and confidence. There is little a doctor can actually do to prevent a patient or family member from using the recording in any way that they choose, but a doctor may wish to ask the patient or family member not to disseminate the information, albeit their agreeing to do so cannot be guaranteed. It is advisable that a doctor documents any discussions that they may have with a patient and family member regarding this matter in their medical record.

Rights to consent and erasure under GDPR

There is a strong argument to suggest that patients and family members do not need to seek a clinician’s consent before recording a consultation because they are primarily processing their own personal information. Where the patient is recording only their own personal and medical information for personal use, this activity falls outside the scope of GDPR. Therefore, a doctor’s potential right to request erasure under Articles 17-19 of the GDPR are not absolute. The logic being that the data the patient or family members are processing by recording the consultation is confidential to the patient but not to the clinician, and that they are free to do as they like with their own data.

However, if a doctor were to record the same consultation, Articles 17-19 of the GDPR would then apply to that recording, and it would be considered part of the patient’s medical record. Although the act of a patient recording their own personal data during a consultation may not fall foul of GDPR, there are other rights and laws that may limit what a patient can do with the audio recording. For example, if the recording included a doctor’s own personal information, the doctor’s constitutional right to privacy or rights under European Convention on Human Rights may limit how the patient could use the recording. If the recording were altered or edited such as to potentially damage the reputation of a clinician, publication of the recording could be the basis for a claim for defamation. Equally, repeated recording or persistent use of recordings to bully or abuse online could amount to the offence of harassment and lead to a potential criminal investigation.

Admissibility of covert recordings in court

The law in relation to the recording of conversations was initially addressed here in Ireland under the Interception of Postal Packets and Telecommunications (Regulation) Act 1983. This Act prohibited the “interception”, or the attempted interception of telephone calls. “Interception” was defined as including the recording of any telephone calls without the agreement of all the parties to the call. However, the Interception of Postal Packets and Telecommunications (Regulation) Act 1993 subsequently came into law, amending the definition of “interception”. Consequently, the current position in Irish law is that it is not illegal to record a telephone conversation if one of the parties to the call consents to the recording.

The current definition of “interception” as per the Postal Packets and Telecommunications (Regulation) Act 1993 infers that only single party consent is required to record telephone conversations in Ireland, rendering a recording legal and admissible. Single party consent means that it is not illegal to record a telephone conversation if one of the parties to the call or conversation consents to the recording. Only single party consent is required for recording conversations, whether on the phone or in person. Therefore, in Ireland, one party may choose to record and the other party need not agree or even be informed of it.

This issue came to the public attention in recent years when Mr OC, former Garda Confidential Recipient, complained that his constitutional right to privacy had been infringed when a Garda whistleblower, Sergeant McC, released tapes of a conversation he had with Mr OC on the telephone. Despite protests by Mr OC, it was found that there was nothing unlawful about the taping of that conversation. In the medical field, RTÉ Investigates covert video and audio recordings from a nursing home in 2015 were admitted to the courts as evidence in a very high profile case.

Looking at these cases to name a few, it is understood that the recording of consultations is not illegal and recordings can be used as evidence in court, provided that the person recording is a participant to the conversation or has consent from at least one participant from the conversation.

How to manage the situation

Without any legislation that prohibits a patient from making a recording of their personal medical consultation, the issue becomes what can or should a doctor do when they find themselves in this position. As a starting point, it may be advisable for doctors to start by having an open and honest conversation with the patient to uncover any genuine reasons the patient or family member may have for wanting to record a consultation. Doctors may wish to use this opportunity to explain why they are uncomfortable having the consultation recorded and to explore the alternative options to recording the consultation such as speaking more slowly, using visual aids, having a relative or friend in the room or writing to the patient after the consultation.

If a patient refuses to stop recording the consultation, it is undoubtedly a difficult situation for a doctor to contend with. However, it is never recommended to end a consultation abruptly. In addition to the continuing duty of care to act in the best interests of the patient, terminating the consultation before assessing the needs and circumstances of the patient could introduce a risk that the patient may come to some harm if they have a serious or urgent condition.

From a practical perspective, a refusal to proceed with the consultation is indeed also likely to be recorded and may only serve to give the patient cause to complain about the doctor. If the patient plans to record all future consultations despite the doctor’s objections, it is important to consider whether the patient’s actions demonstrate a breakdown in the relationship of mutual trust and confidence that exists between a doctor and patient. Although the act of recording a consultation may not of itself be enough of a reason to ask the patient to find a new doctor, if the doctor–patient relationship has broken down irretrievably it may be in the patient’s best interests to be seen elsewhere.

Finally, in an era of increasingly inconspicuous recording devices, covert recording as a product of the digital age should be expected in society. Although it can never be guaranteed that such recordings do not work against doctors and other health professionals, being mindful to act with courtesy and professionalism at all times can indeed reassuringly act as a very accurate record of this.