Covert recording of consultations

A RECENT call to the MDDUS advisory service highlighted some confusion over a patient’s right to covertly (or indeed overtly) record their medical or dental consultation.

The member in this instance was shocked to learn that he had been covertly recorded using a smartphone. He was seeking confirmation from MDDUS that he could warn the patient that this was not acceptable, that the patient could not record their consultations again without his explicit consent and that if continuing to do so they would be advised to register with another GP.

Discovering that you have been covertly recorded can be unsettling but the reality is that there is nothing to legally stop patients from doing so, nor is there any need to seek your consent. When a patient records a clinical consultation, the information being recorded is almost exclusively relating to that patient. Under section 36 of the Data Protection Act there is an almost total exemption for individuals who are using personal data for their own domestic and recreational purposes. The DPA views this data as personal to them and that the recording of such is simply the patient processing their own personal data. Ultimately, the data is viewed as confidential to the patient but not to the consulting clinician.

Patients may record consultations for a number of reasons. They may wish to aid their memory if there is likely to be a complex or lengthy discussion. They may wish to let their family members listen to help clarify matters or keep them informed. Or it may be that they are dissatisfied with the advice they are being given and want to seek another’s view. It is worth noting that covert recordings are admissible as evidence when judged as relevant to a legal case.

If a clinician becomes aware that that they are being recorded covertly then inviting the patient to continue recording openly may positively influence the situation. A gentle question around their perceived need to record the consultation may help clarify matters for you and indeed the patient. A request can be made that in the future they 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 and overt going forward.

On the final point raised by our member, deregistering a patient for this activity alone does not adhere to NHS contractual obligations or GMC guidance on removal of patients and the usual conditions and processes would apply in this respect.

ACTION: Be aware of a patient’s right to record consultations, covertly or overtly, and use this data as they wish. Avoid knee-jerk and negative reactions to these situations.