Part 2: Recording for Entertainment Purposes
As clinical consultations witness a growing trend of patient-initiated recordings, whether via video services or mobile devices, the landscape presents new challenges for surgeons and doctors. More professionals may encounter requests for consultations to be recorded, and sometimes discover post-consultation recordings without prior consent.
Understanding the Intentions
Part 1 delved into recordings for a patient's personal use, aiding their comprehension of advice. However, some of our members have had patients who want to make the recording for entertainment purposes only. Examples have included patients who are lifestyle vloggers who want to share the footage with their followers. There have also been patients appearing on reality TV, so the footage would be broadcast or streamed. The phenomenon is particularly relevant to cosmetic or aesthetic medicine, but such requests have been known even for routine orthopaedic surgery.
Balancing Professional Conduct
Consultations should involve a full and frank discussion. There is a risk that the patient will omit important medical information, or their real reasons for wanting the procedure, if they are being filmed. That would make it much harder for you to give the right clinical advice, and to get their informed consent. The purpose of these recordings doesn't align with aiding patient understanding; instead, they serve as entertainment for third parties or for the patient's professional/publicity motives. Politely refusing such requests is often appropriate, safeguarding both patient and practitioner interests.
Considerations for Filmed Consultations
Doctors and surgeons filmed for entertainment should be vigilant about data rights and professional reputation. Uncontrolled usage of footage could compromise your reputation. Deepfake technology poses further risks, potentially distorting the reality of the footage, impacting your credibility. Sadly, there have also been incidents where a patient has taken a covert recording and shared it online or on social media without consent, often accompanied by disparaging comments. If you become aware of any such incident, you need to seek medico-legal advice immediately. It is vital not to comment online about any aspect of the incident without medico-legal advice, because of professional conduct considerations such as patient confidentiality and acting with integrity. You may need formal legal advice about what remedies are available to get the footage taken down and to protect your reputation.
Managing Complicated Scenarios
Perhaps the most difficult situations will arise where the patient does have a genuine medical need to make the recording to being to revisit and understand your advice properly, but also wishes to publish the footage for entertainment, professional or publicity purposes. The difficulty is that you may not be able to prevent the creation of the recording itself, but ideally you would still want to prevent it being broadcast or shared afterwards.
In this scenario, if at all possible you should pause or postpone the consultation until you can get medico-legal guidance on how to manage the various issues properly in the specific circumstances.
Support from Incision
Our members have the benefit of medical indemnity insurance to protect them in the event of a claim, including those where the evidence includes consultation recordings. Just as importantly, they have the benefit of cover for the cost of legal advice and representation if these issues result in a referral to the GMC.
Members also have the benefit of 24/7 medico-legal advice provided by dual-qualified doctors and lawyers. This means that as developing trends and evolving technologies raise new ethical questions and new liability risks for doctors, surgeons and clinics, there will always be specialists on hand to provide expert yet sensitive guidance to Incision members.
Incision,
January 2024
Part 1 - Recording for the Patient’s Own Use
Part 1: Recording Your Consultation and Consent
The landscape of clinical consultations is changing, witnessing a surge in patients opting to record consultations for their personal use. Whether via video consultation services or mobile devices in face-to-face meetings, this trend is becoming more prevalent. Our members often encounter such requests or discover post-consultation recordings without prior knowledge. Are there associated risks? How should you navigate patient recording requests? This guidance, Part 1, aims to aid our members in safeguarding themselves and adhering to professional obligations. (Part 2, focusing on entertainment recordings, can be accessed here: Part 2)
Understanding the Patient's Intentions:
Recording requests commonly stem from patients seeking detailed reminders of advice for reflection. For some, facing complex decisions regarding their care prompts the need for a detailed recall. Vulnerable individuals, or those with language barriers, find these recordings particularly helpful for comprehension. Notably, these recordings are intended solely for the patient's benefit without any publication intent.
Navigating Patient Requests:
Though limited published guidance exists, recent commentary advises careful consideration of such requests and openness to agree where appropriate. Patients don't require doctors' permission for personal recordings although doctors definitely need permission to record a consultation[1]. Therefore, patients who ask to record your consultation are being considerate and are not necessarily trying to unsettle you.
Engage the patient, understanding their reasons. If their aim aligns with understanding and retaining advice, refusal might be challenging. If the patient’s request is related to their medical needs, then you should make reasonable adjustments anyway (Equality Act). In 2021 the BMA published an article encouraging doctors to explore and support patient requests to record their consultations, while acknowledging that sometimes doctors find it intrusive. The GMC has not published a guidance note on this topic, but comments by GMC representatives have been reported in a 2019 BMJ article[2], which included that a patient can benefit from being able to revisit your advice, which will often include concepts unfamiliar to them.
Request a copy for your records, maintaining your usual written documentation and follow-up protocols.
Managing Discomfort
If discomfort arises due to being recorded, consider minimising distractions. Having a chaperone present can offer support and aid in recording discussions before or after the session. Positioning the recording device out of sight might aid in focusing solely on the patient.
The Benefits and Risks
While recordings may raise concerns about potential use as evidence against you, they could also serve as supporting evidence. They could aid in showcasing informed patient consent and offer a comprehensive understanding of advice revisited by the patient.
If the recording request implies dwindling confidence or anticipates a complaint, seeking immediate medico-legal guidance becomes crucial. If unable to pause, suggesting alternatives like detailed notetaking might offer a middle ground. Responding to complaints requires proper preparation and guidance, differentiating clinical queries from fault-seeking ones.
Policy Considerations
While individual doctors may address recording requests case-by-case, clinics should contemplate written policies to address recording issues comprehensively. Establishing such policies ensures consistency among staff and safeguards clinic and individual rights against potential misuse of footage.
Incision offers medical indemnity insurance and legal support in claims involving consultation recordings. Additionally, members benefit from round-the-clock medico-legal advice, ensuring constant expert guidance in navigating evolving ethical challenges and liability risks.
Incision,
January 2024
[1] GMC guidance https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/making-and-using-visual-and-audio-recordings-of-patients/
[2] BMJ Article - https://www.bmj.com/content/364/bmj.l1101
Extending far beyond our comprehensive coverage, Incision provides all members with a wealth of risk management material, educational resources and 24/7 in-house medico-legal support.
Incision Indemnity
c/o Paragon International Insurance Brokers Ltd
140 Leadenhall Street London EC3V 4QT
Medico-legal Advice 0333 010 2826
Membership Information 0333 444 1515
Incision is a trading name of Paragon International Insurance Brokers Limited (Paragon) which is authorised and Regulated by the Financial Conduct Authority and is an Accredited Lloyd’s Broker. Registered in England. Company no. 03215272. Paragon International Insurance Brokers Limited, 140 Leadenhall Street, London, EC3V 4QT