This overview aims to explore the guidance surrounding the recording of medical consultations, and the British Medical Association (BMA) advice on the rights of both doctors and patients to consent to these audio or video recordings. While the messaging from the BMA is that, generally, doctors should facilitate patients who want to make recordings, there are some exceptions.
Overall, doctors should understand that the patient is most likely recording out of vulnerabilities from a personal perspective, e.g. to reflect and understand, a tool to aid explaining to their family or wanting to refer back with questions etc. Therefore, doctors should encourage the use of recordings in an effort to help the patient’s reassurance.
Can patients openly record consultations? Doctors have a reasonable expectation of privacy during a consultation, so patients are obliged to seek a doctor’s consent to make a recording – although please keep in mind that this is not enforced by law.
If the doctor has no objection to the consultation being overtly recorded by the patient for their own personal use, then they must make it clear to the patient that a condition of the consent given, is that it is in fact strictly for personal use, and not for wider distribution e.g. publication on social media.
What if the patient is covertly recording you? The BMA guidance does suggest that if the patient were to make an audio or visual recording of the consultation without the doctor’s consent, the clinician’s common law privacy rights are likely to be engaged. However, in practice, it would be difficult for doctors to establish that their right to privacy had been breached, mainly because the content is confidential to the patient, and would engage their rights under the General Data Protection Regulation (GDPR).
Therefore, the best steps to take if the doctor suspects that a patient is recording covertly, is to discuss the issue with the patient, explore the motivation behind the recording, and address any concerns they may have.
What happens if the patient publicises the recording? If the patient shares the recording publicly, for example by posting it on social media, then the doctor is able to take some action.
First, the doctor should ask the patient to take the recording down. This can be done by filling out the letter template provided by the BMA.
The template can be found here: https://www.bma.org. uk/advice-and-support/ethics/confidentiality-and-healthrecords/patients-recording-consultations
If the patient refuses to remove the recording, the doctor is theoretically entitled to bring a claim on the basis that the publication of the recording amounts to a misuse of their private information, and as a result infringes on Article 5 of GDPR.
However, a claim of this nature has not yet been tested in court, so it is difficult to speculate on the potential success rates of this type of action.
Summary
The BMA guidance encourages doctors to help enable their patients to record consultations.
- This makes the patient feel comfortable and it can also be in the doctor’s best interest; for example, if a patient recalls advice given in a consultation differently to the doctor or there is a misinterpretation of information given. • If a doctor believes that a patient is covertly recording them, they should encourage the patient to voice their concerns and take the time to understand why the consultation is being recorded.
- Finally, if the recording is publicised, doctors can refer to the BMA template to begin the conversation with the patient to remove it from the platform.
This remains a largely untested area of law, but the general guidance is for doctors to endorse the idea of recording consultations for both the patient’s comfort and the doctor’s own reassurance.