Covert recording in a time of Covid

CONVERSATIONS with patients about their treatment can sometimes involve complex information in which important details may be missed or misunderstood. This is often cited as a reason why patients may record appointments. The treatment they are receiving may be an important milestone they wish to document, such as getting braces fitted or a cosmetic procedure they have been looking forward to for a long time.

Smartphone and other devices make the process of recording much easier for individuals. While it is easy to spot if a patient is holding their camera up to capture audio/video of their dental treatment, on some occasions a patient may choose to make a recording without your knowledge.

Understanding why

Discovering that a covert recording has been made can be unsettling and may make you feel that it’s being done with bad intentions or to "catch you out". However, it’s important to understand the reasons why a patient may want to listen again to what has been said in a consultation. It may be to help them remember important details or understand the information being given – and ultimately enhance decision making about their ongoing care.

Health professionals continue to express concerns about how discovering that a covert recording has been made can impact the dentist-patient relationship, possibly diminishing trust. This is an understandable reaction. It may make you feel that your privacy has been violated, and we are often asked at MDDUS whether this warrants ending the therapeutic relationship with a patient.

Legal basis

The short answer is that there is no legal basis to prevent a patient from recording their own consultation. The Data Protection Act 2018 (DPA) treats consultations as being personal patient information, which can be used for their own individual purpose (hence, patient consent is required if the clinician wishes to make a recording).

Removing a patient from a practice list on the basis of this issue alone would breach NHS contractual obligations and would not comply with General Dental Council (GDC) guidance. When deciding to end a professional relationship with a patient, Standards for the dental team (standard 1.7.8) states: "Before you end a professional relationship with a patient, you must be satisfied that your decision is fair and you must be able to justify your decision. You should write to the patient to tell them your decision and your reasons for it. "

Encourage openness

We would encourage members to embrace the idea that patients may want to record their consultations for valid personal reasons, and to discuss those reasons. Showing your patients that you are willing for them to make a recording may encourage them to be more open and offer prior notice when they intend to record an encounter. Of course the practicalities of a patient making a recording should not impact on you delivering safe and hygienic treatment to your patient, and if this were to be the case you would have valid reason to refuse on those grounds.

Among reasons that patients cite for recording consultations are:

• a desire to accurately capture everything you are telling them
• to be able to later listen back to the conversation after they have had time to think more about it
• to play back the recording to a family member or close friend in order to discuss the treatment or other options.

Changes put in place as a result of the pandemic mean that patients may be less able to have someone else present during an appointment. Recording the consultation offers an alternative, allowing for review at a later time.

Gathering evidence

There are of course situations when a patient may decide to make a recording because they feel a member of the dental team is acting unprofessionally or inappropriately – and this may be used as evidence in a complaint or claim. An audio or video recording in such circumstances can be of benefit in that it may provide an accurate account of what took place in a consultation – proof that normal professional standards were maintained. You should note, however, that while the patient does not require your consent to make a recording, the converse is not true. If at any point you feel it necessary to record a consultation, you should obtain the patient’s consent before doing so.

Providing patient information

In its Standards guidance, the GDC advises dentists to consider patients’ preferred means of communication. With all the restrictions in place during the pandemic, dentists may have to be more flexible than normal when it comes to meeting patients’ needs.

One area this affects is treatment costs – a key element of informed consent. Infection control measures mean that hard copy information is not so readily available for patients to take home. In these circumstances, a recording of conversations with the dental team could help patients to reflect on the available options and perhaps discuss with a family member.

Part 3.1.3 of the GDC Standards guidance states:

"You should find out what your patients want to know as well as what you think they need to know. Things that patients might want to know include:

• options for treatment, their risks and potential benefits;
• why you think a particular treatment is necessary and appropriate for them;
• the consequences, risks and benefits of the treatment you propose;
• the likely prognosis;
• your recommended option;
• the cost of proposed treatment;
• what might happen if the proposed treatment is not carried out; and
• whether the treatment is guaranteed, how long it is guaranteed for and any exclusions that apply."

These should be discussed routinely during consultations, so if a patient makes a recording of the consent process this should not present a problem for clinicians.

Covid-19 has had a massive impact on how we normally communicate with our patients and you may find that you are increasingly conversing with patients remotely either by telephone or even via video call. This will be a new concept to many and therefore it should be no surprise that with the ubiquitous use of video-enabled smartphone devices more patients may choose to record their own remote consultations.

Kay Louise Grant is a risk adviser at MDDUS

ACTION POINTS

• Try to understand why a patient may want to record their consultation.
• Actively encourage patients to have a conversation with you about it if they feel making a recording would be helpful.
• Be clear on GDC standards in relation to communicating effectively. This is particularly relevant when considering their communication preferences and the guidance around informed consent.