Audio-recording your consultations with NHS doctors

[nolegion]

The computer says ‘no’.

 

Forgive my language for a mo’ but, &Yxlg%!

 

Like a previous contributor here, I acknowledge I am no longer short in the fang. I remember the first Data Protection Act coming into force - and seeking to disentangle it for better and for worse, and at least partly failing. I, nevertheless, own up I thought it was probably a strike in the right direction.

 

Nowadays, “Can’t do that: Data Protection Act”, seems much of the time like an ubuiquitous excuse raised by the ignorant on behalf of the duplicitous to cover the disgraceful.

 

If and to the extent that the Act is playing against the individual consumer\patient the chances are it is being misread\misapplied. I have, I trust, every concern on behalf of any such individual as regards eg. inaccurate ‘personal data’ which can be extremely, wretchedly, damaging (from your credit record to your clinical notes) but that is not what this thread is about, right now.

 

This is about:

 

1. The NHS trying to stop you recording your consultations,

 

and,

 

2. Any argument to the effect that you could be prevented from ‘using’ your recording for very good purposes, by actual or purported law.

 

As regards statute, the law looks a lot like this:-

 

[Ex DPA]:-

 

 

35 Disclosures required by law or made in connection with legal proceedings etc

 

(1) Personal data are exempt from the non-disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court.

(2) Personal data are exempt from the non-disclosure provisions where the disclosure is necessary—

(a) for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or

(b) for the purpose of obtaining legal advice,

or is otherwise necessary for the purposes of establishing, exercising or defending legal rights.

 

36 Domestic purposes

 

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…

……………………………………………………………..

… Exemptions

 

27 Preliminary

 

(1) References in any of the data protection principles or any provision of Parts II and III to personal data or to the processing of personal data do not include references to data or processing which by virtue of this Part are exempt from that principle or other provision.

(2) In this Part “the subject information provisions” means—

(a) the first data protection principle to the extent to which it requires compliance with paragraph 2 of Part II of Schedule 1, and

(b) section 7.

(3) In this Part “the non-disclosure provisions” means the provisions specified in subsection (4) to the extent to which they are inconsistent with the disclosure in question.

(4) The provisions referred to in subsection (3) are—

(a) the first data protection principle, except to the extent to which it requires compliance with the conditions in Schedules 2 and 3,

(b) the second, third, fourth and fifth data protection principles, and

© sections 10 and 14(1) to (3).

(5) Except as provided by this Part, the subject information provisions shall have effect notwithstanding any enactment or rule of law prohibiting or restricting the disclosure, or authorising the withholding, of information.

 

‘’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’

I expect you enjoyed that as much as I did. Let’s put it another way:-

 

Section 35 of the Act says you can ‘get legal’ about your recording. (And see ErikaP, earlier.)

 

Section 36 of the Act says you can ‘get personal’ about your recording. (And see Ms Mellani, earlier).

 

If you are truly malevolent\malicious you will no doubt do what you want anyway - but, I’m glad to say, the law may well be there to catch you out.

 

What’s wrong with that?

 

 

 

 

 

 

.

[nolegion]

As I mentioned earlier, the statutory framework for complaints about the NHS changed fairly recently.

 

In connection with the changes, various letters and advice notes were issued to medical service ‘administrators’ Here is a ‘key’ quotation from one of them:

 

“ A key question to ask yourself before beginning any investigation is whether you will be able to reach any robust conclusions. For example, if a complaint is solely about something said in a conversation, and there is no record of it or witnesses, reaching a robust conclusion is unlikely…”

 

(emphasis mine; words: Dept. of Health, 2009)

 

Makes my blood boil… but also makes my point, I think.

 

If you want to read more of this type of bland claptrap from the DoH, see eg:

 

http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/documents/digitalasset/dh_095445.pdf

[nolegion]

I return from a brief trip away to find that this thread is still getting ‘views’. Good.

 

I think it may be at least partly because a ‘close friend’ poster (so close we share the same address) has been ‘stirring the pot,’ elsewhere.

 

When will people learn that would-be ad hominem\ad feminam arguments reflect soooo badly on those that try to mount them? It’s the issue that counts. I think I had taken that on board way before I got to what Americans call ‘law school’.

 

If you are at all interested, try:-

 

http://www.digitalspy.co.uk/forums/showthread.php?t=1255882

 

So far, I believe, most ‘viewers’ would say that CAG is the ‘senior’ site, by quite a chalk.

[nolegion]

I would like to add some thoughts which have connections with ‘case study 3’ I referred to above, and with at least one very specific, and in my view very sane, comment made in the site I referred to as eslewhere and linked in my previous post.

 

The poster compared the recorder-on- the-desk (i.e open recording of consultations) with the well known advice that the telephone call made by a consumer may be recorded, and said:

 

It is meant to provide a record of what is said but also to encourage people to be polite and honest about what is said and staff to be more professional. Why would anyone object to that?

 

Well, indeed. (And, in case study 3, it procured exactly that effect.)

 

My impression is that in the USA the ‘medical reaction’ is more about ‘is this patient trying to\going to sue me?’ and ‘shall I ‘fire’ the patient?’

 

In the UK, I am gaining a somewhat different impression. The initial recation from medics (and\or) their ‘managers’) is in many ways just as hostile, and ‘pretends’ to be about ‘covert’ recording; but when you question that response a bit, it runs out of steam and one finds that little to no logical argument can be maintained against a clear right of patients openly to record. And, once that is clearly established, the ‘covert problem’, largely disappears, I would suggest.

 

But it as an acknowledgment often o-so-grudgingly gained from the medical world in the UK.

 

Why? - I suspect because the real truth is some doctors (not all, but far too many of them) cannot bear the thought of the visible, silent witness in the consulting room. They know it might indeed, one way or another, oblige them to concentrate on acting professionally towards their patients, and some have arrogantly got away with paying lip-service to professionalism for far too long.

 

By ‘professionally’ I include such issues as, for instance:-

 

- preparing adequately before consultations

- communicating properly with patients

- at all times treating patients with courtesy (including returning salutations, listening to what the paient has to say, not unduly interrupting patients etc, ect.)

- properly recording consultations

- promptly acknowedging mistakes and apologising to patients

- at all times making it quite clear they are doing their best to act on behalf of patients and in the patients’ best interests, even if that reflects badly on previous\other medical approaches

- responding to complaints promptly and candidly

 

In other words, that small device on the desk, could actually achieve a genuine and potentially very significant ‘power-shift’ in favour of the so often so utterly powerless, and, frankly, so often abused, patient (or consumer) in one of the largest organisations in Europe. And that is not a small matter.

[nolegion]

Nick Bostock, an editor\commentator from healthcarerepublic.com, has just posted a very helpful, legally supported, article, ‘dead on topic’:-

 

http://www.healthcarerepublic.com/news/1002363/GPs-warned-patients-recording-consultations-posting-internet/

 

I think would like to consider the detail and further confer with a few people before commenting further.

 

Anyone choose to get in first?

[nolegion]

In addition to the article at healthcare rerublic I linked last post, there is also an editor’s blog entry by Neil Durham:

 

http://community.healthcarerepublic.com/blogs/editors_blog/archive/2010/05/11/should-patients-post-consultations-on-youtube-facebook-and-twitter.aspx

 

Both pieces come from the same direction and, in my view, are heading in exactly the right direction. They are brave comments though, in the light of their professional readership, some of which, one can be very sure, will not like what they are being told at all.

 

The journalistic ‘coup’ is to have got the the director of medical services at the Medical Protection Society to come down on the side of patients’ entitlement to record in the matter - and to say so. The MPS claims to be ‘the world’s largest medical defence organisation’ and some estimates say that about half of the UK’s doctors are insured through it. It also provides technical\legal advice to its members. What it says truly matters to healthcare here (in the way that the GMC doesn’t).

 

I don’t want to steal the writers’ thunder by commenting too much further on the detail before anyone who wants to has had a chance to look at what is being said at the site itself, and maybe comment there - in addition to here, of course.

[nolegion]

I am glad to see acknowledgments of and links to the articles published by healthcare republic last Wednesday popping up all over the place. The difference in ‘public airng’ of the topic between today and two years ago (when the article by Ms Mellani, referred to earlier in this thread, was published) is already very marked and irreversible.

 

The central points are, of course, the humane and realistic ones made by the articles themeselves, expressly and implicitly, which I will summarise as: patients come in all shapes and sizes; if a patient happens to be ‘recording shaped’, he or she is still entitled to advice and treatment..

 

And as the director of MPS indicates: the world changes.

 

Now for some notes of caution:

 

1. It will take some time for this to sink in at ‘medic level’, and there is still plently of time and scope for ‘backlash.’ I would continue to be cautious about overt recording unless and until it’s clear you won’t be ‘bullied or banned’ on account of it. Time will tell.

 

2. You will find commentary in this thread and elsewhere about the possible dangers of posting what some might claim to be ‘personal data’ as regards a physician on the net. (i.e by putting some or all of your recording on it - at youtube, for instance). Despite the upbeat tone of the articles, please may I urge you not to do this. Quite apart from the potential legal pitfalls, it does no good to ‘the cause’ if patients behave in a ‘cheap’ and irresponsible fashion.

 

I think that the vast majority of patients who wish to keep records of how they are treated want to do so for good and sensible reasons, for the benefit of their healthcare. They won’t be helped by adverse publicity attracted by the gormless.

 

3. The advice to doctors about asking for a copy of any recording could prove a ‘headache’. I think the notion of a doctor being entitled to a recording if a patient requires one, does indeed deserve fair consideration - but I don’t think it should be the patient’s job to amplify the doctor’s notes. (And one could get into timing, format, virus-checking, storage, transmission etc. discussions, all of which could impede a patient’s path to and through care.)

 

I suggest a ‘recording patient’ should be prepared to agree to clinicians making recordings themselves, if they want to - subject to the same confidentialty considerations as attend any other medical record, of course. That should cover it.

 

All in all though, it’s been a very good week for the recording patient indeed!

[nolegion]

I note that, not surprisingly perhaps, benefits claimaints who go through those ‘Atos medicals’ (posts 29 04 10 - 01 05 10) are very interested by recent developments in this topic.

 

See now eg:

 

http://www.disney.go.com/mickey//news/latest-news/1218-gps-cant-stop-patients-recording-consultations

 

As I have indicated before, I am not sure that one can necessarily consider a benefits 'assessment' and an ‘ordinary’ consultation with a clinician as quite parallel, but it certainly seems that the impact of recent commentary originating from healthcarerepublic is spreading.

 

(As regards the subject as a whole, of course, the dates show “you heard it at CAG first”, I hasten to add!)

[nolegion]

The was a third version of the healthcarerepublic’s commentary last week, which became generally available a bit later:

 

http://www.healthcarerepublic.com/News/MostDiscussed/1002193/Patients-right-record-consultations/

 

In it, you will find words from the ’Chairman of the General Practitioners Committee’ (= the chief GP bureaucrat at the BMA), Dr Laurence Buckman.

 

Buckman explains that he ‘would behave differently in front of a camera’ (i.e during a consultation).

 

Good. A doctor who would behave differently where the patient would have evidence of that behaviour should indeed consider changing their behaviour - right now.

[nolegion]

Anybody who has taken the trouble to follow this thread so far will see why I quote the following from a (U.S) website:

 

“…I feel that in these times of managed care, patients need to take a more responsible role in their own health care. Passive patients may get plenty of medical advice and prescription drugs, but they don't necessarily get the best results.

 

Unfortunately, those who don't insist on being heard may run the risk of being misdiagnosed or inadequately treated. With many people now under some form of managed care, the time they spend with a physician is often very short and many times hurried. If communication isn't quick and accurate, the patient just gets lost in the shuffle. Patients who take charge of their medical care, who communicate honestly with their clinicians, and who are decisive actually receive better care and end up healthier (Harvard Health Letter August 1996, Vol. 21, No. 10).

The following are a few things one can do to get more out of "the doctor's visit:"

 

· Come with questions and ask them. Make a list and bring it with you.

 

· If you have more questions after the first visit, write them down and either send a letter to the clinician, call the office or leave a message. It's best to write the letter; then you have documentation regarding your concerns.

 

· Don't by shy; it'll do you no good. Bring support if needed: your spouse, for instance, or a close friend.

 

· Keep the conversation on track. Don't go off on a tangent that is not related to your concerns. Don't allow the clinician's questions to interrupt your train of thought.

 

· Take notes or tape record your visit. Most patients don't remember half of what happened during their visit.

 

· If you do not feel confident with your clinician's recommendations, treatment or diagnosis, ask for a second opinion. Even though this can be difficult, a good clinician will honor your request.

 

· Let your clinician know your limits. If a test or treatment does not seem reasonable or seems too aggressive, let them know. You may not want to have that surgery or angiogram: what other choices do you have? Sometimes repeating a simple test may answer many questions…

 

…

 

· If you are given very disturbing news by your clinician and you feel just overwhelmed, just tell the clinician that you are overwhelmed and need to come back to talk another time. Then, you can prepare questions and research your condition.

 

· Educate yourself. If you have a chronic or serious illness, get a notebook and build your own reference library, with notes, medical records, responses to treatments, articles, etc. Be informed. “

 

That list was written twelve years ago. I, actively, and pretty much line by line, recommend it now and in England. Thank you very much indeed, Deborah Pate:-

 

http://www.dynamicchiropractic.com/mpacms/dc/article.php?id=37298

[nolegion]

I am pleased to report a modest amount of research enables me to say that the line taken by the Medical Protection Society (as reported by healthcarerepublic, see above) is demonstrably consistent with candid and sensible views emanating from that very large insurer well before the current ‘iPhone debate’ got going here in the UK.

 

As I have mentioned earlier, such sanity is not always attributabe to lawyers advising medics: see post 28 04 10. I dug out paperwork to check the precise source of the, in my view disgarceful, ‘legal advice’ I commented on in connection with that case. It came from lawyers instructed by the other v. large and well-known medical insurer/union.

 

Whereas, back in 2007, an MPS-based article concluded as follows (my apologies for the formatting):

 

‘ “The advice to doctors should be to assume you are being recorded, because you shouldn’t be saying anything that you aren’t professionally happy with.”

 

One way of tackling patients you suspect may be recording you is to be frank about it. Ask

the patient politely if they are recording the consultation, and if so, say that you are happy to

be recorded, but that you want to be told it is happening.

 

“However, just because a patient records a doctor does not mean that they are going to use it as a

weapon,” says Dr Mastihi. She adds: “I don’t think it is the recording itself which is the problem; it is more the idea that it is being used as a threat to catch doctors out. As long as doctors behave professionally they should not encounter any problems.”

 

One solution would be to make consultation recordings more commonplace by making recording devices available to patients, so that doctors and patients would begin to trust them as a valuable way of

documenting discussions. This was envisaged by the 2001 Bristol Royal Infirmary Inquiry into children’s heart surgery, which recommended that patients should be invited to make tape recordings of a discussion with a healthcare professional when a diagnosis, course of treatment or prognosis is being discussed.

 

CONCLUSION

 

The rapid development of technology raises important considerations for doctors, and brings a number of new issues which need to be considered when dealing with patients. But the benefits of improved

communication with patients appear to outweigh the possible downsides. The key is to maintain your professionalism at all times, and be alert to the advantages – and pitfalls – which go hand in hand with

technological advances.’

 

The whole article is well worth a read:

 

http://www.medicalprotection.org/adx/aspx/adxGetMedia.aspx?DocID=11617,11612,249,127,9698,22,11,Documents&MediaID=3134&Filename=MPSsep07+pp12-14+On+the+record.pdf

 

 

To me, it reads like fresh air feels after too long in a cramped, crabby and suffocating room.

[nolegion]

Sara Williams, who wrote the article my last post commends, referred in it to the Bristol Royal Infirmary Inquiry. For those whose memory is not as scarred with the relevant history as those of the families involved, that’s the one into years of challenged but uninvestigated ( = covered-up), severely abnormal, infant mortality rate at the hands of alleged specialist heart surgeons in Bristol,1984 -1995

 

The inquiry took far too long to set up and complete (it reported in 2001), and according to some (me amongst them), still ‘pulled its punches’. Neverthless, it made 198 specific recommendations, some of which, had they been properly implemented, stood a chance of making a real, deep and abiding change in the way the NHS works. And that would have been at least some lasting testimony to the children who perished and recognition of their parents’ grief and persistence.

 

I read through the recommendations another time ast night, prompted by that article. It is staggering, sickening, to think how little of what was of immediate, central and practical importance amongst the recommendations, is actually, genuinely, effectively, happening ‘on the ground’ now, 9 years after the report was published.

 

http://www.bristol-inquiry.org.uk/index.htm

 

I will come back to this subject.

[nolegion]

The BRI Inquiry’s recommendations were intended as a ‘set’ of interlocking proposals designed to produce in total a new framewok for safety, validation and revalidation of clinicians and healthcare bodies, and above all for accountability, within the NHS. Some of the proposals were rejected by the NHS completely from day one. Others were subsequently delayed, diluted or just paid lip service. Still others were ostensibly implemented and then quietly killed off after the heat had died down.

 

Consider these two recommendations:-

 

Recommendation 36

Complaints should be dealt with swiftly and thoroughly, keeping the patient (and carer) informed. There should be a strong independent element, not part of the trusts management or board, in any body considering serious complaints which require formal investigation…

 

Recommendation 10

Tape-recording facilities should be provided by the NHS to enable patients, should they so wish, to make a tape recording of a discussion with a healthcare professional when a diagnosis, course of treatment, or prognosis is being discussed.

 

One does not need to reflect very long and hard to perceive that those two proposals, fully and properly implemented, and working ‘in tandem’, could have made an immediate and extensive difference to the way in whch far too many doctors treat their patients far too often. I have no doubt that many doctors would not be practising today on account of them - leaving room for the good doctors and other clinicians to work professionally and courteously in a new climate of candour and accountability.

 

What happened?

 

Recommendation 10 was rejected ‘point blank’ by the NHS from the outset.

 

Recommendation 36 was resisted, diluted, undercut, mismanaged, and underfunded to the point of subversion. The last vestige of it as regards complaints by most individuals (such as, for instance, the parent of a child with heart problems) ‘died’ last year when responsibilty for investigating serious complaints was ‘silently’ given back to those about whom the complaints are made. (& see post in this thread: 27 04 10.)

 

The lessons’ from the BRI have not been learned, and that is scandalous.

[nolegion]

Some people ‘just don’t get it.’

 

I was given an account yesterday of a GPs practice trying to ‘formulate the practice’s position’ with regard to patients who record - a process apparently insitigated by the articles by Nick Bostock and Neil Durham referred to above.

 

It seems that various caveats, discouragements, possible forms to be filled in before ‘permission could be granted in appropriate cases’, something to be put in the ‘practice leaflet’ maybe ( but ’we don’t want to put ideas into patients heads, now do we’) etc.etc. were being considered.

 

Just in case that practice or one like it should be watching this thread: grow up and get real! Patients do not need the condescension of your permission, docs. They will record as they see fit. If you try to make life in any way difficult for them, the only thing you can be certain about is that they won’t tell you you are being recorded, and you run the risk of misconduct proceedings - which will be supported by plenty of recorded, admissible evidence.

 

Get it now?

[nolegion]

Yesterday I was delighted to receive notification (plus text) of a contribution to this thread concerning the admissibilty of recorded evidence in legal proceedings. It was most helpful: clear, concise, and relevant wit and wisdom supported by evident legal expertise, frankly beyond mine these days.

 

For some reason, however, that post does not currently appear here.

 

“My Turn”, thank you very much indeed for the analysis. I do hope you can work out what has gone wrong, and that you will re-submit your post as soon as may be.

[My Turn]

Yesterday I was delighted to receive notification (plus text) of a contribution to this thread concerning the admissibilty of recorded evidence in legal proceedings. It was most helpful: clear, concise, and relevant wit and wisdom supported by evident legal expertise, frankly beyond mine these days. For some reason, however, that post does not currently appear here.

 

“My Turn”, thank you very much indeed for the analysis. I do hope you can work out what has gone wrong, and that you will re-submit your post as soon as may be.

 

 

Hi Nolegion, this is very useful thread. It's been a few years since I have seen such a good discussion as this on the legality of recording. (There is far too much anecdotal information on the Web and much of it seems based on misleading interpretations of what "should" happen.)

 

My main reference for the legality of recording had always been an interesting article called "Tape Recording Admissibility All At Sea" which appeared in Legal Week on 14th Dec 2006. Legal Week's archives are not open access but the author, solicitor Simon Kamstra, has kindly put a copy of it on his practice's web site. The article may be a little dated now but it shows how many potentially conflicting laws and regulations one has to take into account. I would welcome any comments. I can't copy the text of the post here on ConsumerActionGroup but you can find it at this link:

(edit)

Best wishes

from "My Turn"

Edited June 10, 2010 by ErikaPNP
commercial link removed; please observe the forum rules. Thank you.

[My Turn]

Last edited by ErikaPNP; Yesterday at 18:08. Reason: commercial link removed; please observe the forum rules. Thank you.

 

 

My apologies, ErikaPNP. I hadn't realised that the text I had included was alright but it was the reference to the name of a firm of solicitors which was getting my posts bounced. So if it's ok then I can include the text and leave out the name of the legal firm who the author works for. This is what I was writing to Nolegion about ....

 

 

TAPE RECORDING ADMISSIBILITY ALL AT SEA

 

Last month a colleague came to see me – not a litigator. He had a recording from a client. As he put it it was "dynamite". It was. Could we use it?

 

This is a surprisingly hard question The courts are torn in several different directions, by conflicting policy considerations and legislation.

 

Consider how far technology now hands the client the ability to make permanent, virtually indisputable records, of oral transactions. Spoken word is easy. Filming is not much harder. A PDA, a mobile phone, an i-River MP3 player, a toy even in a Christmas cracker, can record a meeting or a conversation. The i-River is noise activated, so can lie dormant in a room for days. Scary?

 

10 years ago such quality equipment might have been found at one of those sinister spy shops you used to see in Park Lane. Now, a visit to Dixons will do. I had a case where a party had recorded and transcribed hours of his employer's meetings, and handed the whole lot over as a dossier, as his opening gambit in a dispute. These had been recorded on a simple, sub £300 PDA left on the table (like everybody else's). It was SAS grade material.

 

The "hairs on the back of the neck" immediacy of a good quality recording drives away doubts about inference or ambiguity. There must be cases that never come to court, because someone has recorded a key call on their mobile mid call (a Nokia 6230i will do this), or a meeting.

 

If it is obviously damaging, the lawyer listens with head in hands; even if it isn't your client may not be safe from judicial disfavour: hyperbolic black humour is the language of business; clients – and lawyers – swear and curse. This may mean that transcripts of conversations between people who are normal and reasonably moral, may read appallingly in transcript to a stony faced Chancery Division Judge.

 

What's changing is the volume of this material that now finds its way into the legal process, and its quality. But the law on the admissibility of such recordings is in an unpredictable state.

 

The starting point is the English court system's pragmatism. English judges support the maxim that cheats never prosper. At common law there are few exclusionary rules in civil cases. If highly relevant, evidence will usually be admitted. Illegal or unfair methods of acquisition can be dealt with by another route.

 

One hears (and sees in the law reports) many arguments over admissibility. But on what principle, if civil process admits virtually anything?

 

It needs a specialist work to do justice to the subject, but the general practitioner/client should consider at least the following:-

 

(1) CPR 32.1(2) gives the court power to exclude evidence that would "otherwise be admissible". This is a "fair play and process" power under CPR to exclude evidence which is unfairly obtained or which will lead to an unfair process.

 

(2) The Regulation of Investigatory Powers Act 2000 (RIPA) section 1(3) creates a tort of intercepting a communication made on a private telecommunication system. Making such a recording may constitute a tort, and possibly a criminal offence. Clients need to know that.

 

(3) Section 17 of RIPA makes the product of unlawful interceptions inadmissible in court proceedings. In a straight clash of legal principle, the EAT has indicated that it would use its Part 32 powers to override the statute, should the right of a party to have a fair trial be at stake. Explain that, someone please?

 

(4) Article 8 and Article 6 of the European Convention on Human Rights (ECHR) are highly relevant: the right to a private life, and the right to a fair trial respectively. The court can exclude on Article 8 grounds.

 

(5) It is unlawful for courts and tribunals to act in contravention of the Human Rights Act 1998 which incorporate the ECHR into English law. That unarguably brings Articles 8 and 6 into the admissibility argument.

 

(6) Consider any particular tribunal rules, for instance (in employment matters) the Employment Tribunal (Constitution and Rules of Procedures) Regulations 2004, which appear to give the ET's the right to ignore acts of Parliament (eg section 17 RIPA).

 

(7) Do not forget the Data Protection Act 1998,(Data Protection Act) which could have a bearing on recorded evidence cases. Under the First Data Principle in Schedule 1 of the Data Protection Act, any breach of any other statute (ie RIPA) sinks you in Data Protection Act terms. All such breaches can be painted as "unfairness".

 

(8) Finally you should have regard to the Employment Practices Code issued by the Information Commissioner, for rules governing covert monitoring/recording in the workplace.

 

So opening your old Law School copy of Cross on Evidence will not give you the answer. Whatever the difficulty for the practitioner in advising a client on the admissibility of a "dynamite" recording in a civil matter, you can count on three things.

 

First, the side threatened by the introduction of the evidence may be persuaded to discuss settlement, whatever the law. Secondly, it's all disclosable, and must be preserved, so immediately a recording comes into being you are stuck with it, good or bad. Thirdly, even if there is a legal argument over admissibility, the trial judge will probably review the evidence anyway, even if he excludes it! Job done?

 

--Simon Kamstra,

Originally published in Legal Week (14 Dec 2006)

 

 

Edited June 28, 2010 by My Turn

[nolegion]

Thanks for landing that legal eagle’s text, My Turn. A privilege to have it in this thread.

 

For ‘new viewers’ if such there be, I should add that some of the points listed in the artcicle have been referred to more than once here, but it seems to me a neat and authoritative overview, and I particularly like the ‘pragmatic’ approach\ tone.

 

I should also add that, in my view, there is nothing in the listed considerations which should prevent an ordinary, genuine patient’s recording of a consultation ‘getting into court’, even if, for whatever resaonable purpose, such a recording was made ‘covertly’ (See the case of Amwell View School v Doherty mentioned a few times in this thread, the judgment in which was handed down not long before the article was written, I believe).

 

On the other side of the fence, I am glad to have a clear summary of the flexible and pragmatic avenues open to courts in weighing up admissibility of evidence, and the good reasons why some recorded evidence should be excluded in some circumstances.

 

There are some doctors who express ‘outrage’ at this patient initiative - an ill-informed and ill-considered outrage, in my view, but they do - and this leads to the exasperated assertion, ‘There ought to be a law…’ There already is docs, and plenty of it (see above) - and it isn’t going to stop recording patients going on recording and using such recordings to ‘stick up for themselves’, when necessary.

 

(A note for the net-weary: that “CPR” mentioned in numbered point (1) of Mr Simon Kamstra’s article does not stand for cardio-pulmonary resuscitation, Car Plate Recognition technolgy or Canadian Pacific Railway but = Civil Procedure Rules: a dense and delightful tome-and-a-half, also known as ‘The White Book’ on account of…well, I guess one can ‘over-explain’ things, if one is not careful.)

[nolegion]

Some sad family circumstances and a tad of related law have distracted me from this thread for a little while. There are one or two specific points outlined by that excellent article by Simon Kamstra, kindly brought here by My Turn, which I would like to comment on when I have a mo’.

 

In the meantime would any stray viewer, lawyer or otherwise, be able to tell me about\describe circumstances - other than a ‘Mental Health Panel/Tribunal’ review - in which they have been expressly prohibted from taking notes of medical evidence given orally?

 

The atstute will no doubt ‘join up the dots’ here…

[nolegion]

.

Or even the un-aTstute. My on-screen typing does not improve with age.

 

Tallking of ‘joining up the dots’ (and not forgetting outstanding points) the text appended was, I am kindly told, er, ‘inspired’ by this thread and another (it would seem pretty knowledgeable) site which I can’t properly link you to because the best bits are behind a £subscribe. If that changes as regards the bit in question, I will duly acknowledge.

 

Thank you ‘Jim’ for mailing me the letter, last week - we have discussed. Transcription typos will be all mine.

 

Anyone else reading this, beware. I am told, and can believe, this letter has ‘worked’ hands down more than once, and very recently (this thread’s not exactlly antique) BUT, although I happen to agree with the legal views on which it is clearly based, take your own view and your own advice as to your own circumstances. I (mostly) continue to advise most patients to record without declaring it precisely because of the misery unprofessional ‘doctoring’ can cause to those who do so openly.

 

 

Dear [senior\Executive Partner]

 

I write as a patient registered with your practice because I choose to inform you, and your practice, that I will be making and keeping tape- or electronic recordings of ALL consultations, for my personal and any other legal use. The lapel-clip microphone I use normally is likely to be perfectly visible but, whether it is or is not, it records very clearly and I will not be drawing it to anyone’s attention or otherwise remarking on my recording at any stage.

 

You should please make this clear in the medical records of mine you hold, and I am happy for you to do this prominently, ‘on screen’ if thought fit, or otherwise to ‘flag’ this information to your colleagues in any appropriately clear, respectful and courteous fashion. If you fail to do this, you willl appreciate your colleagues will only have you to blame if they at any stage come to realise that they have been recorded without being aware of the fact, and, for whatever reason, are unhappy withat outcome.

 

Beyond saying that my decision applies to appointments with all clinicians whether at your surgery, or with hospital consultants or elsewhere, I do not propose to discuss my reasons with you or any member or employee of your practice and will decline to do so should the matter be raised with me during any consultation. I book and attend medical consultations for the benefit of my health, not to waste my time or anyone else’s with individual clinicians’ views concerning patients who choose to record.

 

Should any doctor at your practice (at your practice’s expense) wish themselves to make and keep any recording of a consultation with me as part of my permanent medical record (but for no other reason) I am likely to consent, provided the process in no way delays or obstructs my access to medical advice or other healthcare at any stage; but I will not myself be providing any copy of my own personal recordings to your practice.

 

It should be clear to you that I write concerning an advised, considered and settled decision on my part. I do not intend to enter into any further correspondence on the subject with you, or any colleague or employee of your practice, let alone fill out any forms etc. As I said at the outset of this letter, I write because I choose to inform you and your practice. I do not require your consent, nor am I obliged to enter into any assurances to you of my own intentions to comply with the law. I trust you and your colleagues know and will comply with the relevant law yourselves.

 

 

YS.

[My Turn]

Nolegion, here is a recent article which appeared on 12th May 2010 on "Health Care Republic". It looks as if the tide of opinion is turning and that some doctors are having to accept there is nothing wrong with a patient recording their own consultation.

 

The article introduces a new twist when it discusses posting the audio tape on the Internet! Hope this info is useful. Regards from 'My Turn'

 

"GPs Warned on Patients Recording Consultations and Posting on Internet"

 

GPs cannot prevent patients from recording consultations and posting them on the internet, legal experts say.

 

This could apply to patients using mobile phones or other equipment to record sound or film consultations.

 

Dr Nick Clements, director of medical services at the Medical Protection Society, warned: ‘The GP has a duty to see to the patients' medical needs. A GP who refuses to do that simply because he doesn't like how the patient wants to do the consultation may be failing in that duty. If the patient insists, I think the doctor probably has to go ahead.'

 

Modern medical records are in a ‘variety of formats', including text messages and emails to and from patients, and recordings could become part of this mix, he said.

 

Recordings could protect doctors, he added: ‘There are often disputes over what was discussed with patients. Video or sound recordings could act in doctors' benefit 999 times out of 1,000. If the doctor is behaving professionally and responsibly they should not be worried.'

 

Dr Clements added: ‘My feeling is that the world is always changing.'

 

Despite initial concerns, consultations without computers were now unimaginable, he said. ‘It may be a cultural thing people will get used to.'

 

He advised GPs to ask for a copy of any recording, and said it may be possible to block a recording edited and put online in a way that did not represent the GP fairly.

(Original article: "GPs warned on patients recording consultations and posting on internet" on Healthcare Republic)

Edited July 2, 2010 by My Turn

[nolegion]

Many thanks once again for the contribution to this thread My Turn, and for sustaining interest when I have been otherwise engaged for the past couple of weeks. I did pick up on Nick Bostock and Neil Durham’s helpful pieces at Healthcare Republic in this thread back in May, but it is very useful to have some of their commentary impoprted here now that, I hope, any copyright ‘sensitivity’ is likely to have diminished with time.

 

As regards the quotation you extract I suspect that, although I was not the author of the letter printed in my last post, the article’s reference to doctor’s asking for a copy of any recording was behind the draft letter’s point on the subject i.e ‘make it yourself’!

 

The notion of patients wanting to post recordings of consultations on the net (eg. at youtube) is, I trust, something of an eye-catching flight of jounalistic fancy…

[nolegion]

So, the last administration abolished the Healthcare Commission and gave many of its responsibilities as regards investigating complaints by patients against doctors to PCTs and similar quangos. The present administration proposes to abolish PCTs and said quangos as fast as it can. Anyone spotted anything missing from the White Paper published this week?

[Sali]

I haven't read the White Paper, only heard bits and pieces of it on the news and certainly nothing related to the original subject of this post.

 

Whilst I agree that the NHS needs changing in many ways, I am worried that these proposals are changes for changes sake and that the reorganisation will bring no improvements, only a hefty bill for the taxpayer and totally demoralised staff on the front line.

 

I understand that the GPs are at the coal face and therefore should be better judges of where money needs spending, but people change when budgets are the issue.

 

Let's not forget that the GPs went along with the PCTs' decision to offer them (well certainly some PCTs, my own amongst them) 'bonuses' for not referring patients to hospital. An average practice could make up to £20K a year in this way.

 

What I really want is an independent complaints process, which PALS today certainly does not represent. What is the use of touting patient choice when we cannot make informed choices because hospital hide their mistakes and failures. So many times it has taken months and months before we learn the truth about a hospital - Mid-Staffs being a prime example.

 

What makes me so sick about this country is that we have known terrorists demanding their human rights, when our elderly and vulnerable in hospitals are frequently suffering because there are too few nurses to care for them. Where are their human rights? I sometimes feel as though I tripped and fell down a rabbit hole into a nonsensical world.

[honeybee13]

Hi there. I suppose it was to be expected that a new government would bring in changes, but [sigh] it seems to have been constant change for the last 13 years and it might be nice to have a period of stability.

 

I would like to see longer taken over the decision and genuine consultation with the profession. What happened to trials of a new system before a fully-fledged implemention of it?

 

I don't work for the NHS, but I can well appreciate how difficult all the changes would be.

 

HB