Is it OK to secretly record your visit with your doctor?
Published Monday, February 19, 2018 10:00PM EST
Last Updated Wednesday, February 28, 2018 3:58PM EST
Perhaps you’ve just been given a serious, life-changing diagnosis. Or maybe your doctor’s jargon-laden directives have left you scratching your head. Either way, you may find yourself wishing you had a recording of your last medical visit -- and a growing number of people are using their smartphones to do just that.
“I have recorded my doctor,” Lynda Millard of Kelowna, B.C. recently told CTV News. “My doctor was not aware that I was doing so.”
Millard says that her intentions were good: she simply wanted to remember what her doctor told her and then share it with her husband. After all, studies show that half of all patients walk out of their physicians’ offices unclear on what they were just told or are supposed to do, unless they had taken notes or had someone with them.
“I think it’s a person’s right to record what a doctor says -- this is my health, my body, my condition,” Millard added. “If the doctor is telling me something, he’s telling me something for the good of me. So therefore, why shouldn’t I have the right to record it so that I can remember afterwards what we discussed?”
In a sense, Millard is correct: in Canada, it’s not illegal to surreptitiously record someone so long as you’re part of the conversation. But secretly recording your visit with your doctor could create a host of ethical and legal issues down the road, especially if those recordings are posted to social media or if you want to use them as evidence in court.
Simply put, you should let your doctor know before you press ‘record.’
To avoid potential problems, Toronto-based lawyer Elyse Sunshine is urging doctors to establish clear guidelines for patients who want to record their medical visits. Such guidelines, she says, should be posted in a waiting room or espoused at the beginning of an appointment.
“I think it is important that health professionals do have a clear policy that they can share with their patients as to what extent they’re going to permit recordings to be done and in what manner,” Sunshine, a partner at Rosen Sunshine LLP, said.
Sunshine, who focuses on healthcare law, adds that recording in a public part of a doctor’s office could violate other patients’ privacy while making a recording in secret could both lead to “a fundamental breach in the trust relationship between the health professional and the patient” and create an incomplete record of what transpired during the appointment.
“We have to remember that a recording doesn’t necessarily capture the entire interaction between the parties, and I think that’s where a lot of the concern comes from,” Sunshine said. “So if the health professional is aware they’re being recorded, they can treat it almost like they would their clinical note and make sure that it’s a complete recording of the interaction, make sure it’s fulsome (and) make sure it’s captured everything that goes on between the parties. However, if they’re not aware of that, obviously they can’t take those protective steps.”
Such was part of an Ontario Superior Court justice’s rationale in a 2017 decision in which he ruled in favour of a doctor who was stealthily recorded by a patient.
“If the doctor was aware of the recording, he may have conducted his examination a different way,” the Dec. 2017 decision reads. “He may have been clearer in the language used... Much of the communication that goes on is nonverbal. The doctor was denied an opportunity to ensure that his words and conduct were being accurately recorded.”
In its suggested guidelines, The Canadian Medical Protective Association (CMPA), a not-for-profit that provides Canadian physicians with legal support and risk management education, also recommends that doctors retain copies of any patient recordings, or at least note that they have been made.
“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,” the CMPA says. “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.”
In Manotick, Ont., near Ottawa, family physician Dr. Alykhan Abdulla decided to create a clear policy regarding patient recordings after learning that he was unwittingly taped.
“The first feeling is a bit of a betrayal, right? Like, why are you doing this? What is your intent behind it?” Abdulla said. “When people don’t tell you what they’re doing up front, you’re always questioning what their motives are.”
Since that incident, however, Abdullah, has more than come around. He now says that he’s happy when patients want to record a visit, so long as they make their intentions known.
“We have a policy where we have no problem with people recording information, as long as it’s told up front, it’s very clear what they want to do, why they want to do it and how that information is going to be used,” he said. “And so we have a discussion with the family, the person, all the people in the room first, and then when we clearly are finished our discussion… we usually say, ‘Is there any part of it that you want to record, and what are those specific questions that you want answered?’ And then we would deal with that at the end of the engagement.”
With files from CTV News’ medical affairs specialist Avis Favaro and producer Elizabeth St. Philip