Is it legal to record a consult with your doctor?

Most smartphones now have basic recording software that lets you record with or without asking for permission. And video conferencing software, such as Zoom have recording functions. The huge increase in telehealth consultations has more and more of our clients asking about whether they can (or should) record consultations with their doctors.

After years of refusing to watch what my friends insisted was the greatest TV show of all time, two weeks ago I finally gave up. Roll tape: The Sopranos.

So much of the show stands up incredibly well to the test of time that it’s easy to forget that filming occurred almost 30 years ago.
And so, during an episode where suspicions are running high that a member of the mafia are wearing a wire, it struck me that secretly recording conversations is much easier than it used to be.

A 2017 study showed that 15% of patients had secretly recorded a medical consult, and 69% of people had the desire to record (with or without permission).

It is important to understand that recording a conversation without permission, such as a medical consultation, is illegal in some Australian states and territories.

Here I’ll take a look at 3 sides to this:

1. Is it legal to record medical consults in Victoria?
2. Is recording a medical consult likely to assist in a claim for compensation?
3. Should you record a medical consult without permission?

In Victoria you don’t need permission to record your consult with a health professional.

Whether you can share or distribute the recording is less clear. Sharing a recording with friends and online are subject to other rules, and consent is required to communicate or publish the recording to any third party.

Courts can consider admitting evidence (such as recorded conversations) even if the evidence was illegally obtained, in certain circumstances. Courts weigh up a number of factors when considering whether to allow evidence that was illegally or improperly obtained or published.

Among those factors, a court will always consider the “probity” and “weight” of the evidence. In laymen’s terms – how useful is the evidence going to be in the case?

Whether a claim for compensation is against the health professional or against a 3^rd party (such as an employer or injury insurer) It is unlikely that the recording of a consultation will assist the claim.

There are three reasons for this:

1. “Gotcha” moments are few and far between. The likelihood that a doctor confesses something to you during a consult which could change a compensation claim is low. Because of this, it is unlikely that a recording of a health professional will be of sufficient interest in a compensation claim to merit the legal fight about whether the recording should be admitted as evidence in the case.
2. The health professional won’t be pleased. Many claims for compensation rely on support from the people who know you best: courts carefully consider what treating doctors and practitioners say about their patients’ injuries. When a treating doctor finds out (during a claim for compensation) that you’ve been recording consults to try to advance a claim, there is a significant risk that the loss of trust and confidence results in them ceasing to treat you or to provide evidence which might help your claim.
3. A recording of a consultation can, in many cases, support the medical professional’s account of the treatment and advice provided. In fact, in one US health facility, doctors who let their consultations be recorded get a discount for their indemnity insurance, because of the reduced risk of being sued for malpractice.

If you’re feeling overwhelmed or anxious about a new medical condition, it can be difficult to keep track of the flood of health information being given to you by a medical practitioner.

Recording an appointment can help you review the information you’ve been given, assist in understanding what has been discussed, and allow you to pass on information about your condition with family and friends.

For these reasons, many doctors and other health professionals allow their patients to record appointments on request. Others might be worried that you will share the recording or use it as a basis for a complaint. Explaining to your doctor why you’d like to record the consult can be a good starting point.

While the law in this area is complex, the overall answer is clear. Just because something is legal, does not make it advisable: recording a consultation with a health professional without their knowledge is unlikely to assist in a claim for compensation, and ultimately potentially does damage to the trust and confidence which is critical to your relationship.

Aren’t you better seeing a doctor you trust rather than recording one you don’t?