Ethical responses to surreptitious recording

Is a patient recording a physician without the doctor’s knowledge? If so, the reason could be that the patient simply wants to remember complicated discharge instructions, or that he or she intends to use the information as evidence against the physician in a legal proceeding.

“Based on my experience in the acute care context, surreptitious recording of health care providers is an increasing trend,” says Sally Bean, JD, an ethicist and policy advisor at the Joint Centre for Bioethics at University of Toronto’s Sunnybrook Health Sciences Centre. “Covert recording is symptomatic of an impaired therapeutic trust relationship which normally forms the foundation of a healthy patient-physician relationship.”

Bean says she is aware of covert recordings that were done to address general concerns, such as a patient or family member creating a record for peace of mind in case something bad should happen, as well as recordings done in response to specific concerns, such as when a pediatric patient cannot be accompanied at all times by a parent.

Alternatively, patients or family members have resorted to covert recording in response to a particular situation, in order to substantiate a claim that inappropriate care was provided. “Once the recording has been made, it can easily be uploaded to a variety of file-sharing services for broad public dissemination,” says Bean.

Covert recordings might lack important context that would provide a fuller understanding of the interaction, and unfairly depict one side or perspective of the issue, and the autonomy and privacy of the health care provider might be undermined, says Bean. “Vulnerable patients, such as children and persons with cognitive impairments, cannot provide consent to have their own privacy potentially infringed by covert recording,” she adds. Providers should consider these practices:

• Communicate with patients to understand what need they seek to fulfill with the recording.

“Not all purposes may be as sinister as they initially seem,” Bean says. For instance, a patient with limited English proficiency might be recording the conversation to have for later reference, but feels too embarrassed to ask for permission to record the interaction.

While some patients record physicians with the intent of using what they have said as proof in a later medical malpractice action, others just want to remember what was said when considering a major medical decision, says I. Glenn Cohen, assistant professor at Harvard Law School and co-director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics.

“Physicians have a fiduciary duty to their patients, the cornerstone of which is trust. Being surreptitiously recorded is a strong violation of that trust,” says Cohen. “If they came to believe that the practice was widespread, some physicians might alter the depth or even the content of information they provide patients, for fear of future liability.”

Patients should clear the request to record with the physician in the first place, says Cohen. “Under the Affordable Care Act’s reforms and incentivizing to move to electronic health records, many physicians are already giving new ‘Clinical Summary’ documents to patients through many electronic health record applications,” he notes. “These include a list of medications and physicians’ recommendations that may fill the void in the benign usage cases.”

• If a patient asks to record an interaction and the health care provider feels that it is inappropriate under the circumstances, the provider should explain his or her rationale.

“Emphasize that you cannot record patients without their consent and to please extend you the same courtesy,” Bean says. “Perhaps a compromise can be reached where a patient takes notes for later reference, or a professional medical interpreter is used to facilitate communication.”

Cohen says that an ethical response, mirroring what many faculty do when lecturing, is to explicitly inform patients that no recording devices may be switched on without explicit permission during the session. “If a patient disobeys, it is not clear the physician would have legal recourse,” he says. “But in many cases it will discourage patients who would have been tempted to record, by invoking moral suasion.”

• Be aware of applicable state laws regarding use of covert audio and video recording without consent.

“If it is deemed that a punitive response to an ongoing pattern of covert recording is warranted, for example, the response should be thoughtful and proportional to the infraction rather than an emotional knee-jerk response,” says Bean.

There are also ways in which patients may jeopardize their own confidentiality in these recordings, notes Cohen. “Recordings made for private purposes on an iPhone, for example, may fall into someone else’s hands and could even be posted online,” he says.

Sources

  • Sally Bean, JD, Ethicist & Policy Advisor, Joint Centre for Bioethics, Sunnybrook Health Sciences Centre & University of Toronto, Ontario. Phone: (416) 480-6100 ext. 5081. E-mail: sally.bean@sunnybrook.ca.
  • Glenn Cohen, Assistant Professor, Harvard Law School and Co-Director, Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics. Phone: (617) 496-2518. E-mail: igcohen@law.harvard.edu.