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Patients Recording Consultations
Covert recordings

The prevalence of smartphones means that more and more patients have the ability to record conversations with their treating medical professionals, with or without the permission of the doctor concerned.

Patients may have a number of different reasons for recording conversations; not all of them ominous. For example, a patient may want to use the recording as an aide memoire so they do not later forget an important piece of advice, or so they can share the advice and treatment options with a loved one who cannot attend the consultation with them. It is important to remember that for many patients, clinical advice provided during a consultation can be a lot to take in, especially if the patient is dealing with upsetting news, and a recording may help them make sense of, and understand, what has been discussed.

Some patients may ask permission to record conversations with their doctor; however, not all patients do so, and there is no legal barrier to prevent patients from making covert recordings of private discussions with their doctors. Any such recordings are considered to be data personal to the patient. As such, it is not considered to be unlawful for them to record and store this information.

What if I notice a patient covertly recording me?

Whilst this may be unsettling, it is not in itself a reason to refuse to continue to treat the patient.

If you notice the patient covertly making such a recording, depending on the situation, you could invite them to record the consultation openly and ask them whether you could have a copy of the recording so that it can form part of their medical records.

If you are concerned that the recording is a sign that the patient does not trust you, this may be something you need to discuss with them openly after the consultation (but not during the consultation). Confronting them during a consultation may compromise the care provided, and it would be in both the patient’s and doctor’s interests to continue with the consultation uninterrupted and deal with the issue of trust at a later stage.

Can a covert patient recording be used against me in legal proceedings? 

In short, yes. In Samantha Mustard v Flower and Direct Line [2019] EWHC 2623 (QB), the claimant recorded her medical examinations with the defence experts. Four of the examinations were recorded with permission, and two were covertly recorded. By contrast, the claimant did not record the examinations of her own experts, and one of the claimant’s experts was critical of how one of the defence experts undertook their examination.

The defendant invited the court to exclude the recordings on the basis that they breached data protection provisions, were unlawful (or at least improper) and created an uneven playing field between the experts.

The Court found that while the covert recordings might be reprehensible, they were not unlawful and furthermore the recordings did not breach data protection provisions. The judge was of the view that the General Data Protection Regulations did not apply to a doctor’s examination because that constituted a “purely personal activity” and that the relevant data related only to the claimant.

Covert recordings may therefore be admitted as evidence in clinical negligence claims, GMC proceedings and inquests. Whilst this may be worrying, such recordings may show that there has been absolutely no wrongdoing on the part of the doctor. It would therefore be in a doctor’s interests to treat every consultation with a patient as if it were being recorded.

If you have any questions or comments in relation to this article please, contact Clyde & Co.

Claire Petts
Partner, Clyde & Co LLP

Clyde & Co LLP and Premium Medical Protection Ltd accept no responsibility for loss occasioned to any person acting or refraining from acting as a result of material contained in this summary. No part of this summary may be used, reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, reading or otherwise without the prior permission of Clyde & Co LLP. © Clyde & Co LLP 2020

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