A successful complaint that a health agency has breached one of the rules of the Code can lead to proceedings in the Human Rights Review Tribunal, with possible penalties including an award of damages of up to $200,000.
A patient asks to make an audio or video recording
The Code only applies to health agencies and so does not have any role where a recording has been made by a patient. It is possible that the Privacy Act could apply in circumstances where some personal information of the doctor was included in the recording, though this would be unusual. Patients may ask to record a clinical interaction for a variety of reasons. When the assessment is for a medicolegal purpose, such as an insurance or ACC claim, the patient may wish to have their own record of what occurred.
The Medical Council of New Zealand (MCNZ) refers to this issue in its statement onNon-Treating Doctors Performing Medical Assessments of Patients for Third Parties Doctors (Dec 2010):
“Recording a consultation
11. A patient may want to record the consultation by video or audio tape. You should consider such a request carefully and, if you do not consent, ask the third-party to arrange for another doctor to conduct the assessment.”
The MCNZ refers to the case of Jackson v ACC,which upheld the patient’s privilege to record a consultation, though also acknowledged that doctors have a privilege in deciding what way a medical assessment should take place. The doctor must be able to reasonably justify a refusal to allow recording in these circumstances.
You should be clear about the reasons why you refuse to permit a patient to record a consultation
Therefore, you should be clear about the reasons why you refuse to permit a patient to record a consultation. The reasons should stand up to scrutiny if the patient complained about your refusal.
Reasons to refuse to consent to recording might include concerns that:
- The presence of a recording device will hinder the open sharing of information and views
- A recording cannot convey relevant non-verbal cues that affect an assessment
- The recording (or a transcript) may be edited in ways that alter its significance
- The subsequent use of the recording will be outside your control and could be used to misrepresent your actions or views.
MPS is aware of cases involving members where each of these problems has arisen.
In situations where a doctor agrees to the recording of a consultation, it is suggested that the doctor consider making an agreement with the patient, prior to any recording, to receive a copy of the whole recording from the patient. Alternatively, a doctor could seek the patient’s agreement to make his or her own separate recording of the consultation.