RESIDENT ISSUES
What to do when a patient wants to record a
patient-physician interaction in the emergency
department
Brodie Nolan, MD*; Alun Ackery, MD, MSc*
†
; Bryan Au, MD*
†
ABSTRACT
Recent technological advances allow for instantaneous high quality
video and audio recordings with the touch of a button. In Canada,
patient privacy is highly regulated by provincial legislation, although
patients themselves have little in the way of laws or regulations to
observe. Patients taking video recordings of their own medical care does not
currently fall under any of the provincial privacy laws. With no such
governance for the general public, patients generally have greater freedom to
record a patient-physician interaction. Unfortunately, there are no official
policies from the provincial physician colleges regarding how best to
proceed in these circumstances. Therefore, the onus is on individual
hospitals and emergency departments (EDs) to develop their own policy on
video recordings. A policy should ideally cover possible recording devices,
locations, staff involved, and mandate that a written consent form be
included with the patient’s chart. While every request should be considered
individually, physicians should generally not feel compelled to agree to the
patient recording the clinical encounter. Patients are legally allowed to
record a patient-physician interaction without consent of their physician,
because the patient can provide the “one-party consent” for the
conversation to be recorded. Physicians should accept the possibility that
they are being recorded at all times and should strive to communicate as
clearly and effectively as possible. Physicians should strive to provide the
same level of care that they would even if they were not being recorded,
and not let it interfere with their clinical decision-making.
INTRODUCTION
You are seeing a new patient in the ED. As you shake
hands and introduce yourself to the patient, he pulls out
his smartphone, presses a button, and places it down on
atable.“Do you mind if I record this, Doc?” he asks.
Ifthishashappenedtoyou,restassuredthatyouarenot
alone. Smartphones are everywhere. As of 2014, 66% of
all Canadians owned a smartphone, growing from 62% in
2013.
1
Instantaneous high quality video and audio
recordings are now only a swipe or click away. In Canada,
patient privacy is highly regulated by provincial
legislation,
2-10
and multiple policies protecting the
privacy of patient’s personal health information have been
published by provincial physician colleges and the
Canadian Medical Protective Association (CMPA).
Conversely, there is no clear law or regulation for patients
in regards to recording their interactions with physicians.
An Internet search demonstrates the breadth of the
issue. There are multiple articles promoting the benefits
of patients recording their doctor visits and encouraging
them to do so to aid in complex decision-making.
11
News outlets report stories of patients who secretly
recorded inappropriate and unbecoming comments from
their treating physicians.
12
Browsing through various
medical blogs and physician news media, there appears
to be varying opinions when it comes to physicians being
recorded by patients, with many opposing the practice.
13
Audiovisual recordings have been identified as a way
of empowering patients to become more engaged in their
own medical decision-making.
14
Another study proposed
that recording technology could help advocate for
marginalized patients by helping to overcome clinical
misperceptions while also holding patients and their
physicians accountable.
15
Thereislittleinthemedical
literature to provide guidance to physicians on how to best
approach these situations. Regarding patients making
surreptitious recordings, Rodriguez et al. suggest that the
first and most essential strategy entails being aware of
and embracing the possibility that every conversation with
a patient may be recorded.
16
Furthermore, they suggest
thatifyoususpectyouarebeingrecordedtoaffirm the
benefits of such recordings and educate the patient about
the privacy rights of other patients to ensure that there are
no violations of patient confidentiality.
From the *Department of Medicine, University of Toronto, Toronto, ON; and the †Department of Emergency Medicine, St. Michael’s Hospital,
Toronto, ON.
Correspondence to: Dr. Bryan Au, St. Michael’s Hospital, Department of Emergency Med icine, 30 Bond St., Room 1-008 Shuter Wing, Toronto,
ON M5B 1W8; Email: b.au@utoronto.ca
© Canadian Association of Emergency Physicians
CJEM 2018;20(3):471-475
DOI 10.1017/cem.2017.23
CJEM
JCMU 2018;20(3) 471
In this paper, legal and ethical considerations are
discussed to provide guidance to Canadian emergency
physicians as to how to proceed if a patient requests to
record a patient-physician interaction, or if a patient
surreptitiously records a patient-physician interaction
without consent of the physician. Recommendations
for developing an institutional policy on audiovisual
recordings are included.
LEGAL CONSIDERATIONS
Each provincial physician college has a policy regarding
physicians making audio or video recordings of
patients.
17,18
In addition, the CMPA has also published
guidelines outlining best practices to protect your patient’s
personal health information.
19,20
The restrictions on
patients recording their own personal health information
are far less stringent than those of health care workers.
Patients taking video recordings of their own medical care
and interactions does not currently fall under any of the
provincial privacy laws.
21
In general, these laws are in
place for health information custodians (i.e., health care
workers and others employed by a hospital or health
care institution) and do not apply to private citizens.
2-10
With no such governance for the general public, patients
generally have greater freedom to record a patient-
physician interaction.
The issue of patients making surreptitious recordings
came to light recently when an anesthesiologist in
the United States was successfully sued after making
inappropriate comments about a patient that were
recorded on his smartphone while he was under sedation
for a colonoscopy.
22
Although obvious differences exist
between the Canadian and American legal systems, the
principles of this case hold true for Canadian physicians.
It may surprise many, but patients have no obligation
to disclose that they are recording a conversation with
their physician. As per the Criminal Code of Canada,
23
it is not illegal to record a private communication if
you are one of the parties involved in the conversation.
Specifically, Section 184.2, Subsection 1 states that
prohibiting interception (or recording) of private
communication does not apply to “a person who has the
consent, express or implied, of the originator or person
intended by the originator to receive the communica-
tion.” A patient having a conversation with his or her
physician would legally be identified as either an ori-
ginator or intended person to receive the information,
and, because the patient would be able to provide
“consent” to the interception as outlined by Section
183.1, that patient would legally be able to surrepti-
tiously record a conversation with his or her physician.
This one-party consent has been upheld in many cases
before the courts, including R. v. Rosen (1980).
24
Although we could not find any criminal cases involving
patients surreptitiously recording physicians in Canada,
it is reasonable to assume that, because these recordings
are legally obtained, they could be used as evidence for
a malpractice suit or a college complaint.
Currently, the written medical chart acts as the primary
record of what happened during a patient’svisittothe
ED, and its contents are generally viewed as facts by the
courts. Although there should be no difference between
the written medical chart and any audiovisual recording
of a patient-physician interaction, recordings certainly
convey more emotional responses. Previous studies have
demonstrated the impact of audiovisual evidence altering
the perception of defendants.
25
These responses could
influenceajudgeorjurywhofinds a physician abrupt,
rude, or rushed, and could potentially sway a verdict.
ETHICAL CONSIDERATIONS
Respect for patient autonomy does not necessarily trans-
late to allowing for patient-physician interactions to be
recorded in all cases. If the motivation for recording is
improving or enhancing some aspect of the patient’s care,
then it is likely ethical to consider allowing filming in
these circumstances. However, if the motivation is for
personal gratification, such as posting to social media,
then this extension of autonomy probably does not apply.
As outlined under the principle of beneficence, patients
may benefit from recording discharge instructions that
they can play back for themselves, for other family mem-
bers, or for their primary care physician. We know how
little patients remember from their time in the ED, and
few can recall their discharge or follow-up instructions.
26
There are, however, important reasons why physi-
cians may not want to be recorded. Physicians, like any
other private citizen, have a reasonable expectation to
privacy in their workplace. Furthermore, if there is
any concern that another patient’s personal health
information may be captured, then any recording is
unacceptable and both the physician and the institution
by law cannot permit this.
20
If one declines to be
recorded, and if there is sufficient time, it may be
helpful to have a conversation with the patient
discussing why you are hesitant to be recorded.
Nolan et al
472 2018;20(3) CJEM
JCMU
At the end of the day, physicians act as their own
moral agents and have the right to ensure that the care
they provide is consistent with their own sense of right
and wrong. Although each case must be managed
individually, physicians should likely at times be willing
to accommodate or find some other way to meet patient
needs if there is some benefit to patient care.
PROVINCIAL COLLEGES AND CMPA RECOMMENDATIONS
Unfortunately, there are no official policies from the
provincial physician colleges regarding how to best
proceed in these circumstances. Therefore, the bottom
line is that it is incumbent upon individual hospitals and
clinics to develop their own policy on video recordings
in the medical setting.
The CMPA offers the following recommendations:
The CMPA recommends the implementation of applicable
hospital or clinic policies regarding patients who wish to
record part or all of their visit to the hospital or clinic.
A policy will clarify the expectations for physicians and their
patients. Physicians working in such facilities should be aware
of any such policies.
While every request should be considered individually,
physicians should generally not feel compelled to agree to
the patient recording the clinical encounter. Courts have
confirmed that physicians are entitled to refuse such requests
unless there is a compelling reason why the recording is
necessary. While it is reasonable to prohibit patients from
recording in public spaces (e.g., waiting room) in the interest
of protecting the privacy of others, physicians should consider
that there may be legitimate reasons why a patient might
wish to record all or parts of a clinical visit (e.g., patient has
memory issues or language barriers).
Patients recording their conversations with their physician
without the physician’s consent is not necessarily prohibited by law
in Canada. Where a patient expresses an interest in recording all
or parts of the clinical encounter, physicians may wish to consider
offering to make the recording and to provide the patient with a
copy. In any event, the recording might be considered part of the
medical record. Therefore, physicians may also consider obtaining
a copy for their own medical record, which could also be used in
the event of medico-legal difficulties.
21
DEVELOPING AN INSTITUTIONAL POLICY
It is essential to seek appropriate expertis e from your
institution when developing any policy on patient video
recording. At our institution, key stakeholders that were
involved when drafting the policy on patient video
recording included representatives from our privacy office,
legal department and counsel, public affairs, and patient
affairs offices. A policy should ideally cover all possible
recording devices, locations, staff involved, and mandate
that a written consent form be included with the patient’s
chart if consent to recording is granted. Getting input
from front-line health care workers from various areas of
the hospital (i.e., ED, operating room, labor and delivery)
allows for a better appreciation of everyone’sconcernsand
experiences with patients requesting to make recordings.
Having a pre-existing institutional policy on video
recordings is obviously extremely valuable if an agreement
between the physician and the patient cannot be reached.
Our own institution’s policy on patients making audio and
video recordings is presented in Appendix A.
SUMMARY
Health information privacy laws protect patients, yet
physicians have limited legal protection from patients
privately recording their interactions. Furthermore,
patients are free to choose with whom they share these
interactions, and these recordings can easily be taken
out of context or shared on social media. A summary of
our recommendations is outlined in Figure1.
In the foreseeable future, there are unlikely to be
changes to the federal or provincial law regarding patient
recordings of encounters with physicians. Therefore, we
believe the modern approach to this problem is to simply
continue treating the patient and communicating in a
professional, exemplary manner. In other words, accept
the possibility that you are being recorded at any time.
Physicians have always been held to a higher behavioural
standard than our patients. As a profession, we should
strive to communicate as clearly and effectively as possible.
Ensure that your words are chosen carefully and empa-
thetically. If recording is allowed, provide the same level
• Be familiar with your ED’s policy regarding patients making video recordings.
• If your ED does not have a policy, create one with the input of appropriate
stakeholders.
• If you do consent to being recorded, ensure that others’ personal health
information is protected, and document your consent in the medical record.
• Remember: patients may be recording you at any time, even without your
consent.
• Behave in a professional manner at all times.
Figure 1. Top 5 Take-home Points
Recording patient-physician interaction in the ED
CJEM
JCMU 2018;20(3) 473
of care you would as if you were not being recorded, and
do not let it interfere with your clinical decision-making.
If you decline to be recorded, if possible, you should
offer alternatives to accommodate the patient’swishesto
have a record of the interaction. For example, you may
offer a clearly written clinical summary or discharge
instructions, or offer to allow still pictures before and
after suturing a laceration. Having a pre-existing institu-
tional policy on video recordings is obviously extremely
valuable if an agreement between the physician and the
patientcannotbereached.Ifyoudosuspectthatyou
are being recorded, you can ask the patient in a non-
confrontational manner. Take the opportunity to inform
them of your institution’s recording policy and, most
importantly, ensure that other patients’ health informa-
tion privacy is not violated.
CONCLUSION
It is likely that patients requesting to make audio or
video recordings during their ED visit will become more
prevalent. Patients taking video recordings are merely
part of the larger picture of patient-centred care in
our increasingly technological society. As such, it is
important to create an institutional policy, which will
cover the making of such recordings. Unfortunately,
patients may still make recordings of interactions with
their physicians without their knowledge or consent.
We believe that continued professionalism, honesty, and
excellent communication will serve the physician well in
this rare situation.
Competing interests: None declared.
Keywords: audiovisual recordings, smartphones, privacy
SUPPLEMENTARY MATERIAL
To view supplementary material for this article, please visit
https://doi.org/10.1017/cem.2017.23
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