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.

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