New technology makes recording conversations and consultations so much easier, but what are your rights as a practitioner and what are the protocols you should follow with your patients?
Scenario: There are some concerning findings following your examination of a new patient. You start to explain the next steps, when the patient says, “I’m sorry, I’m not taking any of this in. Do you mind if I record this so I can listen back to it later?”
It can be difficult for patients to absorb clinical information, especially if the news is not good. Patients can feel overwhelmed or distressed, which makes it harder to retain information and remember discussions about treatment options and next steps. A recording may seem like a good option, especially when most people now have smartphones and recording is as simple as tapping a button.
Technological developments have also seen smart glasses being used to record consultations, sometimes without the clinician’s knowledge. While the technology might be new, patients covertly recording consultations is not. A UK study from 2015 and a 2024 Australian study both reported 15% of those surveyed admitting they had secretly recorded a clinical encounter. The studies also found the majority of patients surveyed have or would consider recording a consultation with their doctor.
The Australian study also highlighted concerns that recording consultations could impact rapport between clinicians and their patients and the recordings are open to misuse.
At the same time, a separate Australian study found that patients reported recordings helped them understand and recall medical information and led to improved engagement and satisfaction with their healthcare providers.
So where does this leave clinicians faced with requests such as in the scenario above?
The first step is to understand why the patient would like to make the recording.
Permission to record
In the scenario, the patient has explained it is for their future use to clarify the information and instructions you’ve given.
If you consider that’s appropriate, you can agree and document the request and agreement. Ideally make the recording yourself, using your own computer or other technology for ease of saving into the patient record, and provide a copy to the patient. Document the details of what’s been agreed, including how the recording can be used and where it will be stored, as well as if and how a copy is shared with the patient.
You are allowed to decline the request to record part or all of the consultation. If so, explain why a recording is not appropriate and offer alternatives, such as providing a written summary at the end of the consultation setting out the necessary investigations and next steps discussed.
The law on recording consultations is complex, and different in every state and territory.
In all jurisdictions, it is legal for someone to record a conversation if all parties to the conversation agree. Any publication, which includes sharing the recording with anyone who is not a party, should only be done with consent. Beyond this, requirements vary across jurisdictions about the way recordings can be used and any exceptions that apply. Seek advice from your Medical Defence Organisation (MDO) if you’re unsure.
It is important to note that recording part or all of a consultation in this context is different from an AI scribe tool “listening” to a consultation to create a draft written structured notes for a clinician to review and save to the patient’s records, however, both require consent.
An audio recording does not replace the need to make contemporaneous notes in the clinical record, given legislative requirements regarding medical record keeping.
If you agree to make or consent to a recording, you should also agree on how it will be used and document this in the patient’s record.
The recording also forms part of the patient’s clinical information so should be stored with the patient’s record. The best way to do this will depend on the medical software you’re using.
If you’re still using paper records, a recording may not be practical or appropriate.
If it is made, consider how best to securely store the recording given the audio file can’t be stored with the paper records.
References & further reading
Article – Megan Prictor, Glyn Elwyn, Amelia Hyatt “How often are patients recording their healthcare consultations in Australia and why? An online survey” PEC Innovation, Volume 5, 2024 (https://www.sciencedirect.com/science/article/pii/S2772628224001031?via%3Dihub)
Article – Glyn Elwyn, Paul James Barr, Stuart W Grande “Patients recording clinical encounters: a path to empowerment? Assessment by mixed methods”, BMJ Open volume 5, 2015 (https://bmjopen.bmj.com/content/5/8/e008566).
About the author: Ruanne Brell BA, LLB (Hons) is a senior legal advisor – advocacy, education and research.
