Individuals recording clinical encounters

A review of applicable law in multiple countries

Authors

  • Glyn Elwyn The Dartmouth Institute for Health Policy and Clinical Practice
  • Jaclyn Engel The Dartmouth Institute for Health Policy and Clinical Practice https://orcid.org/0000-0002-0106-7579
  • Peter Scalia The Dartmouth Institute for Health Policy and Clinical Practice
  • Carmel Shachar Harvard Law School

DOI:

https://doi.org/10.1558/cam.20257

Keywords:

Recording clinical encounters, statutes, healthcare, law, consent, digital audio recording

Abstract

Background: Clinicians and their employers, concerned with privacy and liability, are often hesitant to support the recording of clinical encounters. However, many people wish to record encounters with healthcare professionals. It is therefore important to understand how existing law applies to situations where an individual requests to record a clinical encounter.

Methods:
We searched for and reviewed relevant legal documents that could apply to recording clinical encounters. We limited the scope by purposefully examining relevant law in nine countries: Australia, Brazil, Canada, France, Germany, India, Mexico, the United Kingdom and the United States. We analyzed legal texts for consents needed to record a conversation, whether laws applied to remote or face-to-face conversations and penalties for violations.

Findings:
Most jurisdictions have case law or statutes, derived from a constitutional right to privacy, or a wiretapping or eavesdropping statute, governing the recording of private conversations. However, little to no guidance exists on how to translate constitutional principles and case law into advice for people seeking to record their medical encounters.

Interpretation:
The law has not kept pace with people’s wish to record clinical interactions, which has been enabled by the arrival of mobile technology.

Author Biographies

Glyn Elwyn , The Dartmouth Institute for Health Policy and Clinical Practice

Glyn Elwyn, BA MD MSc PhD, is a clinician, researcher and innovator. He is a tenured Professor at the Dartmouth Institute for Health Policy and Clinical Practice, Geisel School of Medicine, Dartmouth College. He has visiting chair positions at the Scientific Institute for Quality of Healthcare; Radboud University Nijmegen Medical Centre, Netherlands; University College London, UK; and the University of Lausanne in Switzerland.

Jaclyn Engel, The Dartmouth Institute for Health Policy and Clinical Practice

Jaclyn Engel, BA, is currently a Research Assistant at the Dartmouth Institute for Health Policy and Clinical Practice. Her research interests include identifying and addressing barriers to patient participation in care.

Peter Scalia, The Dartmouth Institute for Health Policy and Clinical Practice

Peter Scalia, PhD MSc, is a Postdoctoral Fellow at the Dartmouth Institute for Health Policy and Clinical Practice. His research lies at the intersection of implementation and decision sciences, with the aim of improving healthcare delivery, particularly for those who are underserved.

Carmel Shachar, Harvard Law School

Carmel Shachar, JD MPH, is the Executive Director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. She is responsible for oversight of the Center’s sponsored research portfolio, event programming and fellowships. She is involved with the Center’s Project on Precision Medicine, Artificial Intelligence, and the Law.

References

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Published

2022-08-10

How to Cite

Elwyn , G., Engel, J., Scalia, P., & Shachar, C. (2022). Individuals recording clinical encounters: A review of applicable law in multiple countries. Communication and Medicine. https://doi.org/10.1558/cam.20257

Issue

Section

Forum Discussion