Can Your Patient Secretly Record You?

Can Your Patient Secretly Record You?

JAMA Published “Can Patients Make Recordings of Medical Encounters?: What does the Law Say?” On 8-8-17. This article discusses the fact that recording technology is now readily available for every smartphone user. The authors note that the motivation for for recording may be entirely reasonable; the patient may simply want to be able to review the discussion in order to improve their understanding of the information provided, and possibly to share this information with family members. Researchers found that patients who are provided audio recordings of clinic visits tend to find them to be very helpful. But, what about patients who do these recordings without asking permission of the clinician, who may have or adversarial intent? And, who “owns” the recording? And, what is the status of such recordings in regard to HIPAA?

These are all obviously complex and challenging questions.  The HIPAA question is probably easiest to answer; recordings made by patients and retained by them are not subject to HIPAA. On the other hand, if the clinician records the visit and retains the recording, this  falls in a different category, and is subject to HIPAA standards. On the other hand, the other questions depend on laws that vary by state. There are two basic patterns: “single party jurisdictions” and “all party jurisdictions.” To summarize very briefly, in “single party” states the patient can record without permission from the clinician, and can also share without permission of the clinician.  States with “all party” laws require that all participants in the discussion agree to recording, and also sharing. 11 states are listed as “all party” jurisdictions, and Minnesota is not one of them, so it appears that our patients and clients may legally record discussions with us without our permission, and may even share them with others.

Additional discussion is provided in a commentary posted by Science Daily News,”Can patient’s record doctors visits? What does the law say?” This article notes tension between the trend in the medical field towards more openness and transparency and privacy concerns.

MHConcierge’s take: if you become aware that a patient has recorded therapy appointments, or is considering recording, it would be crucial to have a frank discussion with them and possibly to get legal consultation. In particular, would be important to sort out their intent: collaborative, hoping to obtain benefit between appointments, versus something more potentially adversarial or otherwise detrimental to the therapeutic relationship.

 

 

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