That search engine beginning with ‘G’ spotted this discussion, and I have joined this forum specifically to add some comments on the topic. I have been studying the law and practice relating to this patient initiative for several years now.
First, as many contributors here have worked out, it is NOT illegal in England for a patient to take an audio recording of a medical consultation (provided that no other patient’s confidential information is somehow captured in the process). Any lawyer or medical practitioner who tries to claim it is illegal is simply, point blank, wrong.
Furthermore, such recordings, whether taken overtly or covertly, CAN be admitted to evidence in court or, for instance, in the furtherance of disciplinary proceeds brought by the GMC in front of a Medical Practitioners Tribunal. Most courts and tribunals retain a degree of discretion about what evidence they will consider, but where a recording is genuinely relevant to the matter in hand the weight of authority is soundly in favour of admissibility.
For those who like a bit of ‘chapter and verse’ re legal detail, here is what the MDU had to say about the subject over 2 years ago:-
"Patients do not need their doctors' permission to tape a consultation as the information they are recording is personal to them and therefore exempt from data protection principles. Section 36 of the Data Protection Act 1998 states: "Personal data processed by an individual only for the purposes of that individual’s personal, family or household affairs (including recreational purposes) are exempt from the data protection principles and the provisions of Parts II and III"
"If you suspect that a patient is covertly recording you, you may be upset by the intrusion but if you act in a professional manner at all times then it should not really pose a problem. Your duty of care also means you would not be justified in refusing to continue to treat the patient. If you did, it could easily rebound on you and further damage your relationship with the patient. And remember that your refusal to continue with the consultation could be recorded."
[Dr P. Zack, medico-legal advisor to the Medical Defence Union, the largest UK medical insurer; article at MDU website. Nov 2013]
The summary of the relevant section of the DPA is not quite100% accurate, however. It is the combined facts of a patient 1) being a private ‘individual’ (so not, say, a business) and 2) the personal (so not, say, professional) purposes of the ‘processing’ of the data that keep a patient's activities in this regard more or less completely free from the restrictions of the DPA. It is not the fact that the concentration of the data is likely to represent personal information relating to the patient as suggested by the article. But this is a narrow distinction without much of a difference, and the overall outcome (i.e. legality) is what matters.
The above quotations and quite a bit more ‘chapter and verse’ can be found in a thread discussion started at the ‘Free for All’ section of the BMA’s website discussions, some while back.
See:-
www.bma.org.uk/connecting-doctors/bmaspace/f/21/t/314
The state of knowledge amongst medical practitioners about the law and practice relating to patients recording remains at best very patchy, and herein lies the real and continuing problem.
Even when patients themselves are ‘clued up’ and know they would be perfectly entitled to have a recording for their personal use (and they do NOT have to provide a copy of the recording to the practitioner concerned) I find that many patients are reluctant to inform their doctors of their recording habits(and I do mean ‘inform’ NOT ‘ask’) precisely because it’s "pot luck" as to whether any individual doctor has actually read any of the now really quite extensive professional coverage of the issue – and patients fear they might encounter a practitioner who would launch into some kind of sulk or hissy-fit jeopardising their healthcare.
Quite recently, a hospital-based doctor in Plymouth, entirely erroneously as it turned out, thought that a patient had recorded a consultation on his mobile phone and locked the patient in the consulting room with him– and called ‘security! That doctor was lucky the patient didn’t report the doctor to the police for false imprisonment – but with the persistence of such ignorance and arrogance amongst practitioners it is no wonder that many patients simply record ‘silently’ - as they are perfectly entitled to do.
I am far from alone in pointing out that the way to avoid getting recorded covertly is for people to put simple signs e.g. in waiting rooms, making it clear that patients are WELCOME to record OVERTLY. And, quite frankly, until practitioners get their heads round respecting their patients’ preferences and do something like this, they will have only themselves to blame if, as some doctors sometimes do, they behave poorly towards a patient behind closed doors, and in a fashion they would be unlikely to indulge in if they knew the patient was recording; and then find themselves on the wrong end of disciplinary proceedings with ample evidence of their lack of professionalism. Covert recordings have been ‘key’ in more than one set of such disciplinary hearings this millennium.
Finally, although, as a ‘newbie’ here, I haven’t worked out where all the various contributors are ‘coming from’, I have noted some of the references to social workers being recorded. On this score I would direct contributors to the fine analysis of the ‘Transparency Project’, here:-
www.transparencyproject.org.uk/?s=recording