Patients are increasingly asking doctors if they can record or video consultations on their phones or other devices.
In some circumstances, permitting a patient to record a consultation, who may otherwise struggle to remember or understand, is likely to amount to a reasonable adjustment requirement under equality legislation.
We believe there is significant benefit for both patients and doctors in supporting consensual recordings. We encourage doctors to do so, particularly where patients may have difficulty remembering information.
Benefits of using recordings
When made consensually, recordings can benefit both patients and doctors by:
- enabling patients to remember important advice, particularly where there are language barriers;
- providing a copy of the consultations when patients may have been distressed;
- giving patients more time to process information;
- helping patients and their family members where patients may be experiencing memory loss or have some cognitive impairment;
- including patients' family members in their care and decision making; and
- helping patients to remember if the information is particularly complex.
The consensual recording of consultations, and the storage of the recording as part of the patients’ medical records, formed part of the recommendations and actions for improvement in the Cumberlege report First Do No Harm.
Can patients record consultations without doctors’ agreement?
Our legal advice suggests that doctors’ common law privacy rights are likely to be engaged where patients make audio or visual recordings without a doctor’s consent. In our view, both doctors and patients can benefit where recordings are made openly and consensually.
Information disclosed during a consultation is confidential to the patient, and a covert recording is not therefore a breach of confidentiality.
Similarly, where a recording is made entirely for personal reasons it is unlikely to engage the UK GDPR or Data Protection Act 2018.
Doctors nonetheless have a reasonable expectation of privacy during a consultation. Patients should therefore seek a doctor’s agreement to make a recording. In addition to legal questions, it is a matter of ordinary courtesy and respect, and is more likely to lead to a positive and trusting relationship.
Recording third parties
Sometimes recordings may be made either overtly or covertly where other patients may be present or nearby and can be overheard. All patients have privacy rights and no recording of other patients must be made without their explicit consent. Any such recording is likely to be an interference with their privacy rights under article 8 of the European Convention on Human Rights.
NHS facilities will have local policies on the use of recording devices. These will usually prohibit recordings in any area where the privacy of other patients may be infringed upon, such as communal areas. We recommend that all practices and clinics adopt a version of these policies.
When a patient asks to record a consultation
We encourage doctors to support patient requests to record their consultations.
Although we encourage doctors to enable patients to take recordings, we understand some doctors may find it intrusive. They may feel that it undermines trust and changes the nature of the doctor-patient relationship. They may also be concerned that patients will use recordings for potential complaints or litigation.
If you have concerns
You should sensitively explore the reasons the patient wants to make the recording to allay any concerns you may have.
Most people want to record consultations so that they can listen to them again when they have more time and are in a more relaxed setting, or so that they can share and discuss the information provided with family and/or friends.
We recognise that in exceptional circumstances, some patients may use recordings to pursue a complaint or a legal claim against a doctor. In our view, where doctors are acting professionally, they should have nothing to fear. Keeping clear and accurate records of clinically relevant information is a staple of good medical practice.
Medical defence organisations suggest that where legal cases arise, most recordings actually support the actions of doctors.
If you are still unhappy with being recorded
You should tell the patient and sensitively explain your reasons. If the patient insists, it is important to remember that you still owe them a duty of care. Medical defence bodies advise doctors not to refuse to continue with the consultation.
In our view, doctors should not refuse to continue with the consultation unless the patient can be seen in a safe and timely fashion by another colleague who is willing to agree to the recording.
Covert recordings
Understandably, many doctors express concern about patients making covert recordings. This can be interpreted as a sign that trust is lacking or that the patient may be considering a complaint or legal action.
One reason we encourage doctors to agree to patients making recordings is that they are less likely to make them covertly.
Both legally, and as a matter of courtesy, patients should seek doctors’ agreement before recording a consultation.
If you suspect a patient is covertly recording you
You may reasonably consider this to be a breach of trust and an invasion of privacy. In these circumstances, we recommend you discuss the issue with the patient and explore the reasons they are making the recording, addressing any concerns they may have where appropriate.
One possible option is to invite them to make the recording openly. As discussed above, medical bodies do not advise doctors to end the consultation and refuse to treat the patient. You are entitled to point out that a recording without your agreement will engage your privacy rights.
Consultation recordings posted online
Where recordings of healthcare staff are posted without agreement in publicly accessible media, their privacy rights are engaged and they can request they are taken down.
This is an area of uncertainty and we are not aware of any definitive case law.
Our legal advice suggests that a patient posting recordings of consultations online without the doctor's consent falls outside the domestic purposes exceptions described by the Information Commissioner’s Office. Doctors’ article 8 privacy rights are also likely to be at play.
Domestic purposes – personal data processed in the course of a purely personal or household activity, with no connection to a professional or commercial activity, is outside the UK GDPR’s scope. This means that if you only use personal data for such things as writing to friends and family or taking pictures for your own enjoyment, you are not subject to the UK GDPR.’ Guidance.Information Commissioner’s Office
Where doctors become aware that recordings of them are posted online, and they did not agree to either the recording or posting, they are entitled to request they are taken down.
We recommend in the first instance a consensual approach is sought. You can copy and paste our template letter below to make this request.
Dear (insert name),
It has been brought to our attention that recordings you have made of a member or members of our staff have been posted online without our agreement.
We take every effort to ensure that we develop open and trusting professional relationships with all our patients, and will support patients seeking to record information in order to promote their care and treatment. We recognise that legally patients are entitled to make a recording of a consultation for their private use.
This does not, however, extend to publishing this material without agreement in publicly accessible media, such as via the internet or social media sharing platforms. In these circumstances, advice from the British Medical Association, our trade union and professional body, indicates that our privacy rights are engaged and that this may also amount to a breach of data protection legislation. It is likely therefore that we would be able to take legal action.
I am therefore writing to politely request that this material is taken down.
I would be very happy to talk about this, and our general policy with regard to recording consultations, in person.
Yours sincerely,
(insert name)
If a patient will not remove the recording
Doctors could bring a claim on the basis that the publication amounts both to a misuse of their private information and a breach of article 5 of the UK GDPR.
Depending on the nature of the posting, it is also possible that offences could be committed under other acts, including the Protection from Harassment Act 1997, the Malicious Communications Act 1988, or the Communications Act 2003.
Where publication is potentially defamatory of doctors, actions for libel can be brought in the High Court. This is where publication causes a doctor ‘loss in their trade or profession, or causes a reasonable person to think worse of him or her.’
The outcome of any claim will always turn on the facts of the case and legal advice should always be sought.