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Secret audio recordings: know the law

A patient who makes a secret audio recording of a consultation with a clinician is unlikely to be breaking any privacy or data protection laws. Jennifer Mellani explains how good communication and trust building can avoid the anxiety of this happening in the first place

What should health service managers do if a patient secretly records a consultation session with their doctor or nurse? This is an unusual and unpleasant scenario, but one clinicians may find themselves facing.

The prevailing perception is that such an act is bound to be unlawful and that clinical professionals can rightfully object, but the legal position is quite different.

Generally, the Data Protection Act will apply in situations involving processing personal information and it has become second nature for clinicians to consider their legal obligations under the act every time they process a patient’s personal data. But where a patient decides to record a conversation with their clinician about their health condition, it is unlikely the record will contain anything other than the patient’s own personal information.

Personal matters

Section 36 of the act states that personal data processed by an individual for the purpose of his or her personal, family or household affairs, including recreational purposes, is exempt from the data protection principles and requirements. So even if the data recorded by the patient relates to the clinician, if it was made by the patient for the sole purpose of keeping a record of the meeting, the act will not apply.

Therefore, the fact that the patient did not seek the clinician’s consent to the audio recording will not amount to a breach of data protection law. So could clinicians rely on privacy laws instead? Only if the recorded information relates to the clinician’s personal and family life and affairs and such information is disclosed without justification. This is highly unlikely in the scenario of a patient audio recording a consultation, as the conversation will relate solely to the patient. The recording might be intrusive and could even be perceived as an act of surveillance, but it is not unlawful under privacy laws.

So if clinical professionals cannot rely on the Data Protection Act or their privacy rights, what can they do? The most obvious answer and something that is second nature to good clinicians, is to ensure trust is established between themselves and their patients. Simply providing reassurance and attention to patients could eliminate the anxiety that could lead to a consultation being recorded. Another solution is to adopt a policy whereby patients who wish to record a session will need to seek the permission of the clinical professional caring for them and explain the reasons for the recording. Both routes focus on improving communication and trust and may prevent any such recording in the first place.

Readers' comments (2)

  • While the law in more or less accurately summarised in this short articIe, one central legal and practical issue is ignored: a court of law will NOT exclude such recorded evidence ('secret' or otherwise') in eg. a malpractice suit. And PCTs and others won't be ableto stop patients adducing such evidence under the new NHS complaints rules either.

    I have been consulted by several patients who wish to record all medical appointments -and now do - and would like to do so openly. Howvever. I advise them to do so on an undeclared basis, precisely because medical practitioners\hospital adminitrators routinely try to bully such patients into not recording (by delaying their consultations\reatment while 'policy' is considered, or by threatening to remove them from GP practice lists, for instance), and the BMA is all too happy to help bullying. EVERY patients should be assured - by hospital notice board, practice leaflets etc. - that he or she has an untrammelled right to record any medical advice or teatment received, without being obliged to give any reason whatsoever to anyone. In the absence of such assuranc , medical professionals have only themsleves to blame if they later find themselves confronted by evidence of behaviour towards patients which they come to regret, and, which, indeed, they might well have modifed at the time to the beneift of the consultation concerned had they known they were being recorded.

    This is not a 'circular' problem. The advent of small, powerful, reltively cheap and thus now more or less ubiquitous electronic gadgetry means that patients WILL record, if they want to, and I have direct knowledge of an increasing number who do . It is up to doctors not to treat them like poisonous citizens simply because they have the candour to declare that they do - or they won't declare.

    Treating the 'scenario' as 'unpleasant', 'highly unlikely', 'intrsuive' or 'an act of surveillance' (whatever that might mean in the context) - and in any event something one should try to prevent in the first place,' is frankly way behind the times and to the disadvantage of both medical practitioners and their patients. Patients are NOT required to seek the condescension of your your 'permission', to 'explain' themselves to you or otherwise satisfy some form-filling 'policy' . Get used to it, and seek to get your patients 'on side' by making this absolutely clear in the first place. They are recording away right now, and would much rather do so openly.

    RIDD 0106 09

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  • I have 2 of my "Customers' and that is what they are really, 1 of which chose to use a recorder for the purpose of taking notes and the other who was advised to use a recorder to take notes at consultations between themselves and their doctors. The former used his recording to prove that his doctor wrote onerous statements regarding his specific illness and the latter was unable to prove that they had inaccurate information regarding her consultations with her doctor. I think that a recorder is a valuable tool that assists everyone involved i.e Doctors patients and governing bodies. Even if it is to provide a backup of information a record is a record and can be invaluable for reference of historic events

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