What do you do if your patient or their family/friend start recording a consultation or ward round in the hospital? Is that legal and can you ask them to stop?

These are the questions we have received from practitioners who have been faced with this issue and this article explores the competing considerations and attempts to provide some practical solutions.

The law – privacy 
Photos and videos of an individual are treated as personal information under the privacy legislation if taken by a practitioner for clinical purposes.  However, the principles do not apply if the photo or video was taken by someone acting in a personal capacity, as the privacy legislation does not apply to individuals.

However, the surveillance devices legislation is applicable to this situation.  Most states and territories in Australia have legislation which prohibits the recording (video and/or audio) of private consultations without the consent of each party to that conversation.

There is a general exception to this and that is where the use of the surveillance device is reasonably necessary for the protection of any person’s lawful interest.  Unfortunately the question of what is a ‘lawful interest’ is not the subject of any clear definition.

In 2012 a patient was prosecuted and found guilty of recording a medical consultation without the practitioner’s permission.  The patient had consulted a general practitioner in a private capacity in relation to a suspected inguinal hernia and used a concealed video recorder in the shape of a pen to record the examination undertaken by the practitioner, without their permission.  The patient tried to argue that he was not guilty of an offence because the conversation was not private as the parties to it could reasonably expect that it might be overheard.  This was rejected by the court¹.

Practical considerations – public v private settings 
Practically, it can be difficult to enforce the ‘no recording policy’.  In fact, sometimes it might be beneficial to the practitioner for the conversation to be recorded in some way.

In a private setting, you would be permitted to end the consultation if the patient refuses to stop recording, except in the case of a patient requiring emergency medical treatment.

In a public hospital setting, it would be wise to consult the Risk Management department and/or Medical Administrator to ascertain whether there are any policies in place on the recording of consultations or events.

There may be a few different scenarios that you are faced with:

  1. The patient recording the consultation/ward round themselves;
  2. A family member or friend recording the consultation/ward round;
  3. A family member or friend “live streaming” the consultation/ward round to another third party situated in a remote location.

Recommendation 
We generally recommend that the patient, or family member/friend who is using the recording device, be asked whether they are recording the conversation and, if so, the reason for doing so. In the absence of an explanation that is acceptable to all parties to the conversation, the person (whether the patient or a third party) should be advised that the recording of private conversations without the permission of all parties to the conversation is illegal and not permitted, with a request made to stop the recording.

If the recording is being made by the patient or by a third party with the patient’s express permission, where the patient is a public patient there is unfortunately little, if any, ability for practitioners to decline to continue to provide medical services if the person refuses to stop recording the event.  In this situation, it might be worthwhile to advise the patient that advice needs to be obtained from the Head of Department and/or Management before the consultation can continue.  Obviously, if it is a clinical emergency, this is unlikely to be a realistic option.

If the person recording is not the patient, and the patient either has not consented to the recording or has remained silent, you would be permitted to ask the person to leave the consultation and, in a hospital setting, contact security if they do not comply with your request. Obviously that is a drastic step to take and one that should be considered carefully.

Live-streaming, where a third party, whether or not present on site, is able to view the consultation via some form of video conferencing, raises slightly different considerations.  Whether or not the live-streaming is recorded, the Surveillance Devices Act restrictions would still apply.  It is therefore important that permission be obtained before any third party is involved in a medical interaction and the relevant parties, whether in person or via video-conferencing, should be identified and recorded in the medical record.

If all parties consent to the recording of the consultation/ward round, then an entry should be made in the medical record that the patient, or their family member/friend, was recording the interactions with other health practitioners. You would also be entitled ask for, but not insist on, a copy of the recording so it can be included in the patient’s records.

With the technology available on smart phones/devices, the recording/live streaming of private conversations is becoming more prevalent. Understanding the legal position and your rights is important and if you are unsure where you stand or how to manage a particular situation please speak to one of our in-house team.

¹ Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133

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