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Health professionals must address clients recording of discussions

Health professionals need to have clear guidelines about whether clients can record their discussions, with those either posted in the waiting room or discussed at the beginning of the appointment, says Toronto health lawyer Lonny Rosen.

“Some people pretty much live on social media and use it to document everything that happens to them, so they might think it is OK to record their meetings with a health professional without first asking,” says Rosen, partner with Rosen Sunshine LLP.

“For doctors and others, laying the ground rules with clients before they record anything is appropriate and it's more practical and effective than trying to ban recordings altogether,” he tells AdvocateDaily.com.

Rosen says that clients may have valid reasons for wanting to record these discussions, such as having an accurate account of the health professional’s advice, or the desire to share this information with a family member.

“Health professionals should discuss with the client why they want to record their talk, which may help to identify a solution,” he says.

Rosen says one compromise would be to allow the taping of just a brief recap at the conclusion of the session, rather than the entire encounter.

If patients choose to surreptitiously record these discussions, that can backfire on them, Rosen says, citing a 2017 Ontario Superior Court of Justice case.

According to court documents, a man injured in a car accident secretly taped a meeting with a doctor hired by the defendant, then alleged that information in the recording conflicted with the contents of his report from the examination.

That doctor brought a motion for a further medical examination with a new expert, on the grounds that the recording was improper and undermined the medical process, according to the judgment.

The judge granted that request, agreeing the secret recording of the examination was improper.

“If the doctor was aware of the recording, he may have conducted his examination differently. He may have been clearer in the language used. He may have been more specific in the instructions given to the plaintiff. Much of the communication that goes on is nonverbal. The doctor was denied an opportunity to ensure that his words and conduct were being accurately recorded,” the judgment reads.

If a health professional agrees to allow a recording, they can request to have a copy for their files, Rosen says, or make their own recording of the conversation.

“Having knowledge of the recording allows the health professional to make sure it accurately portrays the client encounter,” he says, adding that it should be considered as part of the client’s files.

If a health professional is unwilling to be recorded, but the patient insists, it would be reasonable to tell the person they cannot provide the service being sought, Rosen says. "But this should always be cleared with the clinic/facility’s management and accord with clinic policy."

He notes these tapes have the potential to be used in a legal proceeding, in the event of legal action or a complaint to the College of Physicians and Surgeons of Ontario.

“In all cases, recordings should never be allowed in public areas, as permitting it would place the confidentiality rights of others in jeopardy,” Rosen says.

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