Patients recording their clinical consultations: A new challenge for medical ethics

The RCGP curriculum and patients recording their clinical consultations

The professional topic guide: Consulting in general practice contains the area of capability: Knowing yourself and relating to others. It outlines the key priorities for GPs in relation to communication skills. In particular GPs are expected to be able to:

Enhance health literacy in patients from a range of backgrounds, by providing tailored information, facilitating communication and checking understanding as appropriate

Current legislation and guidance

Currently the General Medical Council (GMC) has very clear guidance on the consent process for a doctor to initiate the recording of a clinical consultation (GMC, 2020). It states that recordings of patients can be made, as long as the strict, but important, ethical principles of consent and confidentiality are adhered to and that any recordings are kept with the patient’s medical records in the same way as any other medical record. There are many reasons that a doctor may like to initiate recording of a consultation with a patient. Recordings have been shown to be useful in answering research questions in general practice (Coleman, 2000) and can also provide valuable teaching and learning opportunities. Such opportunities can come through the study of unusual patients that present (Liu et al., 2016), but equally by allowing trainees to see and learn from real routine practice, rather than from reported or noted practice, such as portfolio reflection. Currently, learning from real practice is uncommon, however, projects such as the ‘One in a Million’ study is endeavouring to create new learning opportunities for trainee GPs through consultation recording (University of Bristol, 2019). Their aim is to build a database of real-life consultations that will be used to benefit the education of trainee GPs in years to come.

Although there is little doubt of the benefit that doctor-initiated recording of consultations can have for education and research, the problem of patient-initiated recording still remains. Unlike the strict confidentiality and consent guidance given from the GMC for doctors, patients do not need any prior consent to initiate recording of a consultation. This is because ‘consultations belong to patients’ (Elwyn and Buckman, 2015). Section 36 of the Data Protection Act 1998, states that:

Personal data processed by an individual only for the purposes of that individual's personal, family or household affairs are exempt from data protection principles (UK Government, 2019).

Various medical bodies have issued guidance on the subject of recording consultations. The Medical Defence Union states that the doctor still has a duty of care towards the patient as long as the individual is only recording information about themselves and that failure to continue treatment because of recording would ‘not be justified’ (Medical Defence Union, 2019). Furthermore, the GMC have recently shifted their stance on this subject. Having previously refused to accept recordings made by patients as evidence, it now accepts such recordings when assessing professional practice (Elwyn, 2014).

How is current legislation and guidance being perceived within the profession?

There is currently misalignment between perceptions within the medical profession and rights that patients hold to record their clinical consultations. A recent Medical Protection Society poll illustrates this well, as it found that 73% of doctors think they have the right to refuse patient-initiated recording of their consultations (Medical Protection Society, 2014). However, as described in the previous section, as long as the patient is only recording information about themselves this is not the prudent action. Rimmer (2019) advises that doctors should not react defensively to requests by patients to record due to the negative implications for the doctor–patient relationship that this could have, as well as a need to consider the variety of reasons the patient may have for wanting to record.

The recent evolution of social media is likely to be increasingly concerning for doctors, given the potential ramifications that patients’ recordings of their consultations could have for the profession. New social platforms now make it possible to share information with thousands of people in a short space of time. This could cause discomfort within the profession, especially if evidence of bad practice was to ‘go viral’. Although this threat is unlikely to ever completely disappear, it can certainly be curtailed through overt recording, as we will see in the next section. These recent social and legal changes may at first glance appear to have increased the vulnerability of GPs, as well as the profession as a whole. However, as this paper will explore, it could be that better understanding of the advantages and disadvantages of patient-initiated recording might change perceptions and actually lead to increased public confidence in the profession and better quality of care being delivered to patients in the future.

Should we be encouraging overt recording?

It is easy to be sceptical and uneasy about the thought of all patients recording their consultations in general practice, however, the literature on this topic provides strong arguments that encouraging patients to openly record their consultations could actually improve the quality of care they receive. This could come about for a variety of reasons.

First, audio recording of consultations can improve patient knowledge and increase shared decision-making as patients will be able to listen back to their consultations after the appointment. This is important because patient recall of consultations is poor, with studies finding that between 40 and 80% of the contents of medical consultations are immediately forgotten by patients (Kessels, 2003; Sherlock and Brownie, 2014). Furthermore, consultations are experiences that can be both confusing and overwhelming for patients. In light of this situation, a 2014 review of 33 studies by Tsulukidze et al. (2014), found that when consenting patients were given copies of their consultation by researchers, they frequently listened to them and shared them with friends and families. The positive impact of having a copy of the consultation has also been shown by other studies. Rieger et al. (2018) reported that improved recall of consultations resulted in patients having better medical knowledge of their conditions and increased their ability to share information with family members, increasing shared decision-making and improving satisfaction with care. Related to this issue, Rieger et al. (2018) also found that recording consultations had an ‘unequivocal positive impact’ on patient decision-making. Fuller understanding through better recall of consultations has been shown to lead to more informed decision-making, lower decision regret for patients and easier consent processes for GPs (Rieger, 2018; Medical Defence Union, 2019). These findings help indicate how we can move towards fulfilling the expectations of GPs with regards to communication with patients, as set out by the RCGP in the curriculum box above. Thus, as GMC guidance states that doctors should ‘give patients the information they need in a way they can understand’ (Medical Defence Union, 2019), perhaps audio recording of consultations should be encouraged as a method of doing so given the proven benefits.

Second, access to recordings for doctors or researchers could allow quality of care to be improved through better analysis of clinical practice. If an initial diagnosis or management plan is later found to be flawed, the initial consultation recordings from general practice could be analysed and lessons learned from anything missed in these initial consultations, so that similar diagnoses could potentially be made earlier (Elwyn, 2014). Assuming that the strict standards of patient confidentiality that are seen throughout other areas of the profession are upheld, the aid of recording could offer more learning opportunities than are currently available, therefore having a positive impact on the delivery of medical education in the future.

Of course, the prospect of a future where all our patients record their consultations could be intimidating for doctors who may feel that the doctor–patient relationship would be compromised or that such recordings could be used in future litigation. Although these are legitimate concerns, perhaps this is just an adaptation period to changing social and cultural norms. Clements (2015) likens current anxieties around recording to those felt when computers were first introduced to general practice, now something that practices could not do without.

There is little doubt that changes in systems can at first be daunting. However, it could be argued that those practising good standards of medicine can only benefit from being recorded, as they could rely on these recordings as evidence in the event of litigation. Being recorded could also increase the incentive to maintain and update medical knowledge (Elwyn and Buckman, 2015), something which could improve standards throughout the profession.

Another concern about recording consultations is that recordings could change the behaviour of doctors and lead to a new style of ‘defensive medicine’ being practiced (Elwyn and Buckman, 2015). O’Hara (2017) argues that anyone who has sat Objective Structured Clinical Examinations knows that they behave differently when under scrutiny; but is this necessarily bad? Doctors that know they are being recorded are more likely to uphold official guidance and are less likely to cut corners (Elwyn and Buckman, 2015) and if they do, questions might rightfully be asked. Furthermore, there is evidence in the literature that suggests there is very little change in consultation style due to recording. Pringle and Stewart-Evans (1990) found no significant difference in consultation length or number of problems dealt with in general practice consultations between those being recorded and those not, suggesting that any differences in behaviour were transient or negligible.

The risks to the doctor–patient relationship of covert recording

As previously stated, the patient is the owner of the consultation; it is confidential to them and they can legally record it either with or without the knowledge of the clinician. Studies have found that between 26 and 40% of recordings are made covertly, but due to the clandestine nature of this practice, it is impossible to know the true scale of this activity that many authors propose has the potential to destroy the future of the doctor–patient relationship (Elwyn, 2014; Elwyn and Buckman, 2015; Tsulukidze et al., 2015).

Patients may choose to covertly record consultations for a variety of reasons. Such motives include distrust in doctors or the wider healthcare system, lack of knowledge regarding their right to record openly or fear of being denied permission by the clinician (Elwyn and Buckman, 2015; Tsulukidze et al., 2015). In their 2015 review of 62 texts on covert recording, Tsulukidze et al. (2015) identified key themes that arose as a result of patients covertly recording. First, the topic of covert recording elicited strong negative reactions from clinicians. The study noted an ‘erosion of trust’that comes from covertly recording consultations, which could affect morale in the profession. Doctors who think that patients are trying to catch them out and trip them up are more likely to feel pressurised, a factor which could indeed change their behaviour and affect the standards of care they can deliver. Because of this point, Gross et al. (2018) suggested that the GMC should reconsider its current acceptance of covert recordings as permissible evidence in litigations. Second, Tsulukidze et al. (2015) highlighted the need for better guidance on the topic for both patients and clinicians. They describe a widespread lack of knowledge of legislation from both parties that could be fuelling patients’ motives to covertly record. Better education alongside addressing the factors motivating covert recording could reduce the stigma around open recording and see a reduction in the potentially detrimental practice of covert recording.

The future for recording clinical consultations

As technology continues to develop, it is likely that it will become increasingly easy for patients to record their consultations. From the literature it is clear that there are many benefits to this activity, provided that it is done appropriately. However, it is apparent that doctors and patients alike are lacking knowledge on legislation surrounding the topic. Surveys have shown that as many as 91% of doctors feel that they need more guidance (Medical Protection Society, 2014). As a result, the benefits of audio recording are probably not being maximised. As Gross et al. (2018) discussed, perhaps more protection is required for clinicians in this changing social climate. The authors argued that clinicians should have the same rights to privacy as patients, especially now that the threat of uploading recordings to social media offers new challenges and vulnerabilities. As a result, perhaps doctors need to communicate better with their patients to encourage overt recording and agree the limits of further dissemination of any recordings made. The production of clear guidance for both patients and clinicians on how to record consultations in a mutually beneficial way could ease this process.

Emerging technologies, such as the mobile application ‘SecondEars’, have begun to offer an insight into the possible future of consultation recording (Lipson-Smith et al., 2019). This is a platform that clinicians can use to audio record their consultations when requested to do so by patients. The application then sends a copy of the recording to the patient while also keeping a copy with their medical records, meaning it can be shared equally with both the patient and their medical team without risk of breaches in data protection or patient confidentiality. Knight and Papanikitas (2018) discussed the dangers of having confidential information stored on many separate and non-integrated systems and devices, as would be the case if patients record their consultations independently. Astute development of a technology such as ‘SecondEars’ could see the creation of a safe platform for recording and storing consultations, immune from the data protection and confidentiality issues that could arise from patients recording consultations themselves. Such new technologies are still in early stages of development.

In the meantime, clinicians should do more to actively encourage patients who wish to record their consultations to do so openly. Encouraging open recording of consultations is important as it will maximise the benefits for patients while also overcoming many of the aforementioned motives to covert recording. Minimising covert recording is of paramount importance if we are to protect the future of the doctor–patient relationship against this new challenge.

More research is required if the true benefit of encouraging patients to record their consultations in general practice is to be known. Such research could highlight the importance of this area and the need for a sustainable solution to potential harms resulting from irresponsible or malevolent use of recorded consultation data.

Will we ever reach a day when all clinical encounters are recorded? Whether or not this happens, it is clear that it is an ethical issue and likely to continue to evolve. Clinicians should therefore endeavour to stay up to date with new guidance so they can use all the tools available to provide the best possible standards of patient care.

KEY POINTS

Advances in technology are making it increasingly easy for patients to record their consultations in general practice