Since mobile devices are such an integral part of daily life, it is not surprising that some patients want to bring their smartphones into their physicians’ offices to record some or all of their clinical healthcare encounters.
These audio or video recordings may benefit patients, giving them improved clarity about their health and a greater sense of engagement, possibly leading to better adherence to their care plan. However, any recording in a physician’s office also has the potential to raise issues, such as the privacy of other patients and staff, the impact on the doctor-patient relationship, and the incorporation into the medical record.
To leverage the possible benefits of recordings and counter any possible problems, physicians need to be prepared. They should become aware of their privacy obligations and consider whether to adopt a policy on recordings in their premises.
Privacy issues in public areas
Patients recording in public areas of a doctor’s office, such as waiting rooms and other common spaces, could possibly capture other people who are not involved in the patient’s healthcare encounter. The recordings could include identifiable information about another patient or staff member and lead to an allegation of a privacy breach against the physician.
The allegations would be based on physicians’ ethical and legal obligations to maintain their patients’ personal health information in accordance with privacy legislation. Physicians are also required to protect the personal information of their employees. The general rule is that identifiable, personal information about an individual cannot be collected, used, or disclosed unless the individual has provided consent, or unless it is otherwise required or permitted by law.
The CMPA has seen cases in which video taken by a patient in a doctor’s office without the physician’s knowledge has appeared on public websites and on social media.
Impact on the doctor-patient relationship
A patient may have valid reasons for wanting to record a clinical encounter in a private area such as an examination room. They may want to have an accurate record of the physician’s advice, or to share the information with a family member.
However, the recording of a clinical encounter by a patient without the physician’s knowledge could be perceived as reflecting a lack of confidence in the relationship on the part of the patient. As well, misunderstandings related to recordings can lead to regulatory authority (College) complaints.
Impact on the medical record
The law in each province and territory requires that physicians and healthcare institutions maintain a treatment record for each patient. A recording made in the context of providing patient care is likely to be considered part of the clinical record. A recording of the clinical encounter can also be invaluable to a physician since it is likely the most accurate and reliable record of the encounter, though it is not a substitute for a physician’s notes.
What can physicians do about recordings in their offices?
Physicians should prepare for patient recordings and consider adopting a policy on the use of smartphones and other recording devices in their offices.
Any policy should distinguish between what is allowed in public spaces and in private areas. As patient recordings in a public area of a physician’s office may result in allegations of a privacy breach, physicians should consider implementing a policy prohibiting patients from taking photos and making video and audio recordings in the waiting room or other public areas where patients and staff members are present.
At a minimum, physicians should consider whether it is necessary to prohibit patients from taking photos and making video and audio recordings in the waiting room or other public areas to protect the privacy of patients and staff members. It is also important to inform patients of the policy. This could be done, for example, by posting it in the waiting room and examination rooms.
Physicians may also want to be proactive by encouraging patients to speak with them before making a recording of the clinical encounter in a private area. A smartphone recording of a patient’s visit has the potential to be used in a legal proceeding (in the event of a legal action or College complaint). It is therefore ideal for the physician and patient to reach an agreement about whether a recording may be made, how it will be made, and how it will be ensured that the privacy of others will not be affected. There may be times when it’s not possible to have this kind of discussion in advance, such as when someone begins recording during an emergency. In these situations physicians should find an appropriate time later to talk about the issues.
When patients ask to record their visit...
- Ask them why they want to record the encounter to determine what they hope to achieve.
- Consider whether better alternatives exist, including recording part, but not all, of the encounter, and discuss these options with patients.
- Accept or decline the request. If declining, explain the reasons for the decision and offer to continue with the encounter regardless. If the patient insists on recording, physicians will have to use their discretion on whether or not to continue the appointment.
- If a recording is made, note this fact in the medical record and, when possible, ensure a copy of the recording is maintained along with the clinical documentation.
Physicians should document in patients’ medical records that a recording took place and other details (e.g. duration of the recording, topics covered, etc.). The recording itself should be maintained in the medical record or the record should indicate where the recording can be found (e.g. in a file on the office’s secure computer server). Physicians should ask the patient for a copy of the recording. If there are concerns about obtaining a reliable copy from the patient, physicians may consider offering to record the encounter and to provide a copy to the patient, or to make their own recording at the same time as the patient. Physicians who make their own recording of patient encounters should first obtain patients’ informed consent.
In the event that a patient has inappropriately posted a recording online from the physician’s office, various options are available to attempt to have it removed, depending on the website and the content of the recording. Most social media sites provide reporting tools to request removal. Members are encouraged to contact the CMPA to discuss the options available to them in specific circumstances.
A note on physician use of smartphone recordings
Although patients can record their clinical encounters without a physician’s consent, the same does not hold true for physicians. Clinicians who wish to record a clinical encounter should first obtain informed consent from the patient, and that consent discussion should be noted in the medical record. Some Colleges may require the use of a separate consent form for this purpose.
The bottom line
Patients may benefit from recording their healthcare encounters. Open communication about the need for the recording will help ensure that recordings will not threaten the privacy of other patients and staff or affect the trust between physician and patient. If a physician believes a recording is appropriate, consideration must be given to ensuring a copy of that recording is kept as part of the medical record.
As technology advances and recordings become more common in healthcare, robust communication skills are becoming essential for physicians. The CMPA Good Practices Guide provides physicians with information on how to improve their communication with patients.