Dilemma: Covert recording made public

I recently consulted with a patient about an ongoing medical issue. They have in the past expressed dissatisfaction with accepted treatment options, having researched their condition on various websites and online forums. I have now discovered that they covertly recorded our consultation and posted it on a public Facebook page without my consent. What can I do about this?

In an era of social media this is an increasing concern for many doctors, who must try to balance their duty of confidentiality with a patient’s right of autonomy. Some doctors will feel personally aggrieved to discover a patient is covertly recording a consultation, and worse still to find that it has then been posted online.

So what can a doctor do about it?

The answer lies in considering the type of harm, if any, you have suffered. As with all individuals, doctors have privacy and data protection rights in relation to their personal information. However, a consultation is focused on a patient’s medical care and generally does not require a doctor to disclose any of their own personal data. If the consultation is limited to a patient’s information, they have the right, under existing legislation, to post their information on social media.It has been suggested a patient recording their consultation with a doctor is similar to them taking their own notes.

If, however, a doctor considers that their privacy and data protection rights have been breached because the content posted is not limited to solely patient information, then they are entitled to request that the recording is taken down.

We consider below the possible reasons for a patient recording the consultation, the relevant law and professional guidance, as well as the steps a doctor may take in a case like this.

A new challenge

There is a growing trend in patients recording their consultations, and studies have shown a significant proportion of these recordings are undertaken covertly. This may reflect changing attitudes to our data, privacy and the doctor-patient relationship. The Covid-19 pandemic has also accelerated the use of remote consultations and the increasing use of technology makes it easy to record these interactions.

Why record?

Patients may record consultations for a number of reasons:

• It may aid their memory in a complex or lengthy discussion.
• They may wish to let their family members listen to help clarify matters or keep them informed.
• They may want to promote their own view in a public forum.
• They may record covertly when they are uncertain about relevant local policies for recording, or they fear a request to record would be declined.

The law

The legal provisions which apply to recording consultations or other contacts include the Data Protection Act 2018 (DPA), the General Data Protection Regulation (GDPR), the Telecommunications Regulations 2000 and Article 8 of the Human Rights Act 1998.

A data subject, in this case the patient, is entitled to their personal information – including the information from a consultation. Once the data is in the patient’s hands, it is up to them what they do with it. They are not bound by the same ethical obligations as a doctor and so if they want to post their consultation on social media there is no legal prohibition against it.

Data protection regulations require that organisations and businesses inform individuals in advance if calls will be recorded but this does not apply to patients recording consultations for personal use. As such, there is no legal prohibition to a patient recording a consultation, even covertly.

It is also worth noting that covert recordings are admissible as evidence when judged as relevant to a legal case.

GMC guidance

In terms of regulatory guidance for doctors, the GMC does not provide specific guidance on patients recording consultations – their guidance is focused on a doctor’s obligations if they want to make an audio or visual recording.

Patient discussion

It is understandable why you may feel unhappy with a patient recording their consultation and posting it on Facebook. However, it is difficult to take any action against the patient for the manner in which they have handled their own information. You can exercise your own judgement as to whether it would be worth asking the patient to take down the recording but there is no obligation on them to do so.

You might consider directly approaching the patient with a polite request to remove the post, outlining your concerns or offering further discussion. They may not have given thought to or be aware that their post may infringe on the privacy rights of others.

We would recommend contacting MDDUS for more detailed advice.

Concerns about bullying or harassment

Posting of consultations without the doctor’s consent may, in some circumstances, fall outside the personal use exemptions of the GDPR. However, there is no definitive case law and this is an area of legal uncertainty. This may be more relevant to instances where the posting of content is perhaps used or manipulated to misrepresent the consultation, or to harass, bully or defame a doctor. Doctors may wish to seek specialist legal advice in such circumstances.

Social media platforms such as Facebook and Twitter allow individuals and organisations to report and request removal of posts that contravene their rules. Harassment and bullying are examples of behaviours that contravene the rules on most social media sites.

Preventive measures

A possible means to avoid this situation occurring in future is to focus on building a good relationship with each patient, so they feel able to raise any concerns at the outset of a consultation. A patient who is engaged and reassured is less likely to feel the need to covertly record a consultation.

Healthcare providers should have a policy governing the use of recording devices, to ensure the privacy rights of other service users are protected. Having a written policy will help to clearly communicate to patients that, whilst recording of consultations may be permitted, subsequent posting of the recording on a public forum may breach the privacy and data protection rights of others.

Proactive approach

Doctors may feel less threatened by a patient’s request to record a consultation when viewed as a means of meeting the communication needs of that individual.

You might also consider inviting the patient to openly record future consultations in order to positively influence the situation. A gentle question around the perceived need to have a recording may help clarify matters for you and the patient.

A request could be made that in the future they at least alert you to this activity but be aware that the patient does not have to comply with this – although demonstrating acceptance and lack of defensiveness may enable the patient to be more open going forward.

Exploring the reasons a patient wishes to record their consultation also affords an important opportunity to highlight risk to patients on the potential detrimental effect of sharing their consultations online. This may be particularly relevant where there are concerns a patient may have impaired capacity to make an informed judgement.

Key points

• If a patient tells you they want to record a consultation, you should allow them to do so. Consider requesting a copy of the recording to retain within the medical records.
• There is no legal prohibition to a patient recording a consultation, even covertly.
• In the event that the consultation discusses third-party information, or might cause serious harm or concern for other reasons, contact MDDUS for further support and assistance.

Dr Naeem Nazem, head of Medical Division, MDDUS

Ms Gillian Robertson, medical practice adviser, MDDUS