Audio-recording your consultations with NHS doctors

[Sali]

Thinkaboutit you have every right to challenge, but I read (perhaps wrongly) your post more as a demand. I actually enjoy reading your contributions with your different perspective. However, it is as I said, whatever Shirli said in her post, we understood that she did not mean to imply that all NHS staff were the same. Still, it's not such an unjustified stance considering many of our past experiences with the health service.

 

****

 

So in the news this week we have yet another doctor (Steven Forde) with a penchant for covert videoing, an MP caught on camera playing Candy Crush at work (the hunt is on for the 'illegal' film maker), and nolegion sending factual tweets about the CQC!

 

We can only hope that the GMC strikes the doctor (if found guilty) from the register, that the votors shun the MP at the next election and the judge dons the black cap for nolegion.

 

I'd always understood that (in the UK) home CCTV cameras were not allowed to view beyond a property's boundary, but I questioned this when I saw the footage of the woman who was caught (and prosecuted, I believe) putting a cat in a wheelie bin. The ICO states that the DPA does not apply if you install a camera on your own home to protect it, but some councils clearly apply their own rules and ordered this resident to remove his camera (and his wind chimes)!

 

http://www.andoveradvertiser.co.uk/news/regional/basingstoke/10400521._I_ll_refuse_to_silence_my_wind_chimes_/

 

We also have the case of the man who used surveillance specs to record verbal abuse and successfully prosecute his tormentor. I doubt he would have got the footage if his abuser had been aware of the camera.

 

http://www.theguardian.com/uk-news/2014/oct/07/bullied-student-video-sunglasses-private-court-case

[nolegion]

Speaking from my tumbrel, I say that attempting to construe sensible law from EU judgments is like trying to unravel tangled balls of string; but I have now had a chance to study the "RYNES" ECJ decision, for what its worth, and to read some of the newspaper commentary on it so far. Much of the latter materially misrepresents the legal consequences of the case, and no doubt such inaccuracies will persist in various media for some while to come.

 

A. First, it should be said clearly that, as regards domestic CCTV usage, the ruling does directly interfere with the way the relevant English law has been framed and understood, for many years.

 

Up till now a private individual has been able to rely on the 'personal or household activity' exemption from the provisions of the Data Protection Act 1998 as framed in s36 of that Act, and as described by the ICO here:

 

"Some uses of CCTV are not covered by the Data Protection Act; for example, the use of cameras for limited household purposes (such as to protect a home from burglary) - even if the camera overlooks the street."

 

https://ico.org.uk/for-the-public/cctv/ (as at 12 12 2014)

 

But that cannot now be reconciled with this crucial part of the ECJ decision of 11 12 2014:

 

"…the operation of a camera system, as a result of which a video recording of people is stored on a continuous recording device such as a hard disk drive, installed by an individual on his family home for the purposes of protecting the property, health and life of the home owners, but which also monitors a public space, does not amount to the processing of data in the course of a purely personal or household activity…"

(emphasis mine)

 

(http://curia.europa.eu/juris/document/document.jsf?text=&docid=160561&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=596727

 

It seems to me that there are two things that a homeowner can do about this. Either:-

 

(i) adjust your camera position so it only records activity on your own property, or

 

(ii)"notify" the ICO of your activities in the required form and submit the required fee, which I think is £35 for private individuals at the moment – corrections welcome. This will mean that you become subject to the entire paraphernalia of the DPA - and the ICO codes as regards CCTV usage (which it will assuredly be busy re-writing, right now).

 

The point is that, once duly 'notified' to the registrar, the activity will no longer be deemed illegal simply by the absence of such notification – which is what happened to Mr Rynes. And it may well be that that you can justify your particular, ongoing, surveillance, even though some 'public space" is included in your 'continuous recording'. (You may need to put a notice on you wall declaring the CCTV usage).

 

Indeed, not only does the ECJ decision in 'Rynes' specifically envisage that there may be cases in which such 'external' surveillance by private individuals may be still be justified in accordance with EU Directives here:-

 

"…it [is] possible, where appropriate, to take into account… legitimate interests pursued by the controller, such as the protection of the property, health and life of his family and himself, as in the case in the main proceedings"

 

it appears to indicate the Court accepted that Mr Rynes himself did in fact have a such 'legitimate interests'

.

However, because it was decided he couldn't rely on the "personal or domestic activity" exemption, he was still in breach of the law because he hadn't 'notified' or 'registered' his activities with the appropriate Office i.e. the Czech equivalent of our ICO (such notification or registration being another aspect of data protection law derived from EU Directives).

 

In practice, I suspect people here will wait for the ICO to issue amended guidance or codes in the light of the Rynes decision before committing to 'notification'.

 

So what has the ECJ ruling achieved? It has potentially added a layer of expensive bureaucracy to the activities of many private individuals which it acknowledges may well in fact be perfectly justifiable in the first place.

 

On second thoughts, I think the expression "of string" in my opening sentence in this post was otiose.

 

B. Far more happily, I am glad to say that I think there are ample reasons for asserting that Rynes case CANNOT be properly be argued against patients audio recording their medical consultations or care home residents using surveillance cameras in their bedrooms. I hope to come back to this in more detail, but this post is more than long enough already.

[nolegion]

CQC & ICO

 

A measure of 'update' as regard cameras in care homes (and other forms of recording in a medical\care setting) is now available from the CQCwebsite:-

 

"Final, minor amendments are being made to the information for providers and we are aiming to have this information available on the CQC website by 15 December.

 

More significant amendments are required to the information for the public, both in terms of being ‘on the issue not either side of the issue’ and to include some of the additional detail suggested at previous Board meetings.

 

Working with the Plain English Campaign to produce a leaflet for the public that is much more accessible to the public. This leaflet will go back to the Executive Team for final sign off, with the ambition of publishing it by the end of January."

 

http://www.cqc.org.uk/sites/default/files/CM121404_item_4_chief_executive_report.pdf (p.6)

 

I reckon the ICO will beat the CQC to it as regards issuing revised guidance (for the public) on the use of surveillance cameras. Much as I think the ICO's performance when following up complaints by members of the public is, at best, very patchy, and sometimes pathetic, it is usually to be commended for the accuracy and clear presentation of its legal commentary in its various publications. The CQC would do well to take note.

 

That silly Rynes case is a challenging one for anybody to explain, though. It fits with the way our law is framed like a foot in a glove. If anyone spots the day the ICO amends its statement as printed and linked in my previous post (as it now must) before I do, please sound the alert here.

 

Thinking of Sali's second link in post #902, there are going to be a lot of parties very interested in what the ICO has to say – including a well-known producer of computerised spectacles.

[Sali]

Perhaps Google Glass will get around any clampdown by being so obvious, whereas the surveillance specs used in this successful prosecution were very discreet and allowed the victim to capture his persecutor unawares. Covert recording tends to be more 'true.'

 

Is it 'public space' or 'property boundary' that needs clarification? It would be odd if it were necessary to register with the ICO because your home CCTV inadvertently covered part of a public road, but not if your camera (hopefully because they could not avoid it) included a section of your neighbours' front gardens.

 

What the ECJ ruling has achieved is to make us all a little more confused. It is doubtful at this time that people who have home CCTV will change their cameras siting or what they view. I would have thought that anyone who captures a crime (against them or others) in this way and presents the evidence to the police, would be foaming at the mouth if our legal system allowed any identified perpetrator(s) off the hook because of this loophole/lack of clarity. I always hope that commonsense will trump, but it rarely does.

[My Turn]

Perhaps Google Glass will get around any clampdown by being so obvious, whereas the surveillance specs used in this successful prosecution were very discreet and allowed the victim to capture his persecutor unawares.

 

 

Hello Sali. I had almost forgotten about Google Glass. After a lot of publicity and favourable trials, Google Glass seems to have gone quiet. It was expensive but seemed to do a lot of what was claimed for it.

[Sali]

I guess Google Glass is not going to be a spy's first choice in their current form, but has other features and may yet be part of our future lives.

[nolegion]

In my view, Sali is dead right about the confusion arising from the Rynes decision. Some commentary claims it 'clarifies' the law. No it doesn't – and the absence of indication of what is supposed to be 'a public space' for the purposes of its ruling is a central part of the issues it confuses.

 

The ICO appears to have gone into shock. Unblinking, it has made no acknowledgment of the decision at it website to date (that I have been able to spot, at any rate: corrections welcome ) - and its twitter feed carries on blithely regardless.

 

**

 

As regards face-mounted technology, I see a Chinese company is developing a product to complete with Google Glass, called the Baidu Eye. This addresses some of the difficulties users of the American gadget have reported (e.g tiny 'screen', very short battery life) by means of a wi-fi link to a mobile phone to be carried by the wearer).

 

I won't link directly for fear of offending this site's anti-advertising rules, but there is an ' official' presentation of the gadget on Youtube.

 

***

 

The CQC has now posted its 'information for providers' concerning, amongst other forms of recorded care, surveillance cameras in care homes. Although it avoids certain issues and is embarrassingly poorly expressed throughout, it certainly seems that the mauling the first drafts received at the hands of the full CQC board has had some real effect on content.

 

I set out the full text of the relevant section below. It should be remembered that there was no equivalent to this text in the information for providers, before. Just the meretricious nonsense in the draft information "for the public", which I got so aerated about last month (e.g. #886). The version for the public is still awaited, but in the light of what has now been published, it would be very difficult to repeat the original claptrap in full in the further document.

 

Having said which, the bits I have put in red remain highly offensive, and, in my view, if deployed against a care home resident using a camera in his or her own room, could promote illegal behaviour by a service provider.

 

 

" 15.Surveillance equipment installed by people who use the service, or their relatives

 

From time to time, people naturally worry about whether a loved one is being properly cared for. Whether they are being looked after in a health or social care setting, there will be times when relatives and friends may be concerned because they cannot see directly what is going on. They may think about using a hidden camera or audio recording device to reassure themselves about the care their loved one is receiving. We will shortly publish information for the public to help them with these considerations.

 

If a provider discovers that covert or overt surveillance is being used in their service, the welfare and care of the person using the service must remain their primary consideration. Even if the use of the camera breaches a contract of service, the continuity and safety of the person’s care must be ensured.

 

The decision to use surveillance may well arise from a significant fear or concern about the quality of care or about the welfare of a vulnerable person. It may indicate a problem which you were not aware of, and it is very important that this is investigated and understood. In some cases, this may even lead you to think about undertaking your own surveillance, with consideration of the information in this document.

 

The person using the service or their friend or relative should not suffer any detriment of care or consideration if you discover that they have used surveillance without your knowledge. As with any other circumstance where concerns are raised, we would expect the provider to follow appropriate procedures to investigate and respond.

 

If you are concerned that the surveillance may be unreasonably intruding on the privacy or rights of a person using the service or others, then you will want to ensure this is properly assessed and make a decision about the continued use of the surveillance equipment, including the position relating to consent and safeguarding circumstances.

 

Deliberately damaging a surveillance device, deleting recordings or removing the device with the intention of not returning it to its legal owner is likely to be a criminal offence. However, switching a camera off, or removing it for safekeeping and return to its owner would not be."

 

From:-

http://www.cqc.org.uk/sites/default/files/20141215_provider_surveillance_information.pdf

[nolegion]

Happy New Year to all Caggers, but especially, of course, to those who contribute to this forum and this thread.

………………………………………………………………………………….

 

Janus: according to some traditions, the two-faced Roman god of the turning year.

 

Yesterday 31 12 2014

 

Dame Butler-Sloss on Radio 4 ( From Radio 4 "Today" 31 12 14: mins 1:09 to 1:39)

 

Interviewer:-

 

'…There was another issue which was reported on, not least by the Times, who quoted somebody when you, carried out a review of abuse allegations within the Church of England. There were two priests who had been abusing at least one individual. He also mentioned to you allegations of against a bishop. And he quoted you as saying that you, "would prefer not to refer to this bishop in the report " because you, "cared about the church." '

 

Sloss:-

 

"That's absolutely untrue."

 

 

Today 01 01 2015

 

If the following (2011) recording has been available publicly before, it's news to me:-

 

Sloss:-

 

" I have two reasons: one is, of course, that I care about the church. And I don’t want to give to the press that which is not terribly important in the context of the Gottard\Pritchard story. And just know that if I put a bishop in it would take the news. I would prefer not to refer to him."

 

 

Mr Johnson's intelligence and persistence need no commendation from the likes of me, of course – but I offer my congratulations all the same. The relevance of his approach to this thread, is, I trust, entirely obvious.

[nolegion]

For the sake of complete accuracy I should perhaps add that the word 'Gottard' in my previous post should read 'Cotton'. The error was purely the result of my clumsy compiling and editing of the post. I didn't spot it within the 'edit' period.

[nolegion]

Yesterday I was talking with a retired senior police officer, who is, not surprisingly, still well informed about legal matters arising e.g. in connection with the Regulation of Investigatory Powers Act, the Police and Criminal evidence Act, and the Data Protection Act.

 

I think it would be fair to say he sounded dismayed by the decision of the CJEU decision in Rynes. He used to work in London and pointed out that it would be standard procedure to investigate serious crime by not only looking at 'official' surveillance camera footage but by ('actively') asking residents in the area concerned to provide any footage of public spaces that their own domestic security cameras might caught, and which might help the police in their investigations.

 

I have little doubt that most residents would be only too glad to supply such evidence; but if the Rynes decision is enforced in the way in which I fear it now must be – although the ICO still hasn't batted an eyelid – a valuable resource and deterrent against crime will have been seriously eroded.

 

I have been trying to figure out a way round this, and so far I can only think that it must be possible for the ICO to make the statutory 'notification' ( = really, registration) procedure for domestic security camera users exceptionally quick, cheap and easy. This could be done by approving a specific, brief, 'template' notification to the Commissioner, a similar brief 'discreet' 'wall-notice' to accompany the camera usage and a notification fee reduced to the purely nominal. It would also require an extensive and maintained information campaign, no doubt, to encourage domestic users to 'notify 'to be on the safe side.

 

In the absence of such notification, it is greatly to be regretted that many domestic residents may be found to be in breach of the law – and my ex-copper friend worried about the courts then potentially excluding the evidence so obtained evidence from criminal proceedings.

 

That appears not to have happened in the Rynes case (so far as it has been reported to date) and given that the facts concerned had their origin as far back as 2007, little might now be achieved by the 'perpetrator' now appealing his conviction. But imagine how galling it would be to see some thuggish vandal\ would-be burglar walk free when you had cast iron evidence of crime against you in your possession that the court wouldn't look at - while you get prosecuted for breach of the Data Protection Act.

[Sali]

I'm not sure I want domestic CCTV to be registered. However, if a camera was intrusive (as in directly pointing at a neighbour's window) or suspicously voyeuristic, I would want the local council to be able to intervene. Having said that, with cameras getting smaller and able to take higher definition pictures, it may be that we don't know we are being watched. It would be interesting to know the statistics on how frequently domestic CCTV has captured a crime, which has been used to catch and convict a criminal.

[think about it]

Sali, I'm afraid to say that I know of at least one person who was caught with their 'hand in the cookie jar' by a camera concealed in a teddy bear by rightly suspicious relatives. The woman involved, who I went to a youth club with back in the early 90's was caring for (I use that term loosely) a terminally ill elderly lady and decided to help herself to whatever cash was in her purse. The family suspected this and placed 3 £20 notes in mums purse having taken note of the serial numbers and let teddy-cam catch her in the act. Thankfully the police responded appropriately, as did the courts and promptly locked her up for six months.

 

 

http://www.telegraph.co.uk/news/newstopics/howaboutthat/2580340/Thieving-carer-caught-red-handed-by-teddy-bear-camera.html

[Sali]

Happy New Year thinkaboutit.

 

I saw one of your posts and it seems to me you and your family have been through the wars. My sympathy and I hope this new year brings everything you wish for.

 

Yes, I read this story and have seen and heard of similar. All crime is wrong but targetting a vulnerable individual is just dispicable.

 

I fully support covert audio/video recording within a private home and I believe that overt CCTV in care homes, hospitals (anywhere there are vulnerable persons) could act as a deterrent, a guardian and as a source of evidence, for both sides, when there is doubt. The stakes are too high for us to rely on trust alone.

[nolegion]

If only it were the case that the worst covert surveillance exposed was theft.

 

The siblings whose mother was brutally treated in a care home in Wraxall near Bristol, initially discovered 'only' pilfering (of confectionary and the like brought by visitors) - and was actually thinking of 'letting that go' (rather than 'stir up trouble'). The balance of their recordings over many days revealed the treatment that eventually sent one of the 'carers' to jail. It is essential that there is no hint or shadow of criminality cast upon the actions of such recording families themselves. This family did everyone else in that care home and their relatives an enormous favour.

 

The CQC came along later to hold a barndance whence the horse had fled, of course - fat load of use to a large organisation which was genuinely horrified to discover what had happened, itself reported the staff concerned to the police straight away, and was trying to take every step it could think of to put matters right, on its own.

 

..............................................................................................

 

A paragraph in The Times today reports:-

 

" What the doctor ordered

 

Patients should record their consultations with doctors to help them understand their treatment, a leading GP has urged. Doctors are also more likely to give better care if they know they are being taped, Glyn Elwyn, a professor at Dartmouth College, from New Hampshire in the US, a former NHS GP, wrote in the BMJ. Other GPs said it would damage the patient-doctor relationship."

 

Well, yes, the good professor did write along those lines in the BMJ (and was generous enough to give this thread a credit, to boot). But he did so in March 2014.

 

I have checked but cannot find any subsequent such article by Prof. Elwyn in the BMJ to date – corrections welcome.

 

Better late than never?

[think about it]

Happy New Year thinkaboutit.

 

I saw one of your posts and it seems to me you and your family have been through the wars. My sympathy and I hope this new year brings everything you wish for.

 

Yes, I read this story and have seen and heard of similar. All crime is wrong but targetting a vulnerable individual is just dispicable.

 

I fully support covert audio/video recording within a private home and I believe that overt CCTV in care homes, hospitals (anywhere there are vulnerable persons) could act as a deterrent, a guardian and as a source of evidence, for both sides, when there is doubt. The stakes are too high for us to rely on trust alone.

 

Thanks Sali, it's been a challenging yet interesting time in seeing all that the NHS has to offer from both perspectives. I also your year year brings peace and all that you wish for.

 

nolegion, you are of course right, £60 and a handful of Quality Street is in the grand scheme of things just small change in comparison to some of the shocking footage that's been obtained like this. I hope that the regulators and courts keep the level of perspective over such recordings that they have in the past, no part of ensuring the well-being of your family, even in your absence ought to be frowned upon.

 

I struggle to watch some of the news reports where people (I prefer not to call them carers, they're the absolute opposite of caring) systematically and routinely abuse and humiliate people too weak or frail to stand up for themselves. I'm blessed with the frame of a rugby player but I won't always be big and strong enough to look after myself and then frankly I'm at the mercy of someone elses decency and humilty.

[Sali]

http://www.theguardian.com/world/2015/jan/06/tony-porter-surveillance-commissioner-risk-cctv-public-transparent

 

The link is to an article in which Tony Porter, (the surveillance commissioner), says the public are becoming complacent about being watched.

 

He has a point - well, quite a few.

 

I do not object to ANPR in principle if it helps to rid our roads of road fund and insurance dodgers

.

CCTV/body camersas do not prevent crime, (even when they can predict behaviour), but I am hopeful that they act as a deterrent on occasions. The footage is also evidence and even a learning aid.

 

A dashcam would not stop an accident, but it could make dealing with an insurance company alot quicker and easier and also help prevent fraudulent 'crash for cash' claims.

 

Domestic CCTV will not stop a determined thief breaking into my shed, but it may help the police identify and catch the perpetrators.

 

I do not relish the thought of being tracked or profiled - I switch off location services on my 'phone. I do not like loyalty cards. However, on balance, I do not see surveillance cameras as the devil's servants, because they are working for me too.

[Sali]

Yesterday 31 12 2014

 

Dame Butler-Sloss on Radio 4 ( From Radio 4 "Today" 31 12 14: mins 1:09 to 1:39)

 

 

I heard the Today interview at the time, but my ears are a little distracted in the mornings, so I have re-listened to it.

 

I have also listened to the evidence gathering recording between Johnson and Sloss.

 

I do not think that Mr Johnson makes himself clear about naming the bishop. It seems, to me, he agrees with Baroness Sloss. Why then tell the BBC that he had little choice but to agree with her decision not to include it in her report? There were two reports; one public and one that went to the Archbishop. The bishop is named in the latter as I understand. If Mr Johnson changed his mind, thought he had not made hinmself clear on this particlar issue, or felt he had been railroaded into agreeing with Baroness Sloss, he should have spoken to her directly. My take on it is that he was embarrassed because he felt intimidated by her. I do not underestimate how difficult a subject this must be for him.

 

I don't know if Baroness Sloss was the right person for the job, but clearly whoever manages the investigation must have the support and confidence of the victims.

[nolegion]

That Surveillance Commissioner chap seems to be talking a lot of sense.

 

Perhaps he will get my local authority to explain why they installed ANPR for day-time operation on the entry to my nearest 'recycling centre' – complete with flash-up electronic display showing drivers their numbers had been 'logged'.

 

Maybe he will also beat his Information Commissioner colleague to the draw in getting a clear and comprehensive statement of practice online about domestic security cameras following the CJEU 'Rynes' case.

 

I noted sadly yesterday that the latter's previous statement:

 

"Some uses of CCTV are not covered by the Data Protection Act; for example, the use of cameras for limited household purposes (such as to protect a home from burglary) - even if the camera overlooks the street."

 

has now been removed from the ICO website's advice re CCTV, 'For the public'. This was inevitable - but it hasn't been replaced by anything, explaining to householders what they should do. I realise that the 'Winterval' arrived in the middle of the time elapsed since the European judgment (Dec 11 2014) but time marches on….

 

……………………………………………………………………………

 

My principal beef against Butler-Sloss could be described as narrow and even 'legalistic'.

 

The question of what she, actually and precisely said, to Johnson before the Chichester\C of E enquiry's report was published has been a matter of controversy for some time.

 

Here's a link to a Times article published back in 2012:-

http://mandatenow.org.uk/wp-content/uploads/2014/12/Inquiry-judge-hid-claims-of-bishop%E2%80%99s-sex-abuse-_-The-Times1.pdf

 

I think, therefore, it is fair to say she cannot have been surprised when very specific allegations (originally made by Johnson) as to exactly what she said in her meeting with him, were put to her in the 31 12 2014 R4 interview.

 

She chose immediately and emphatically to deny that she had in fact said what Johnson had quoted her as saying. She went on, promptly, partly to retract and then to qualify\ explain that initial remark. But her immediate denial was inaccurate: in 2011 she did say to Johnson exactly what he had said she did. Would she have so denied on air in 2014, if she had known Johnson had the recording?

 

As separate and wider matters, I agree that the 2011 meeting seems to have become ambiguous in some respects – and thus 'open to interpretation.' With the benefit of Mr Johnson's recording, however, I think it is difficult to avoid the conclusion that Sloss had an agenda of her own which she wanted to foist on him. And if, as Sloss claimed in the R4 interview, there was in fact 'insufficient evidence' at the time to name the Bishop in the (public) report – why was Johnson's 'agreement' even being sought? It ought to have been irrelevant.

 

The online Times lurks behind a paywall, but I hope they will forgive me for posting their 01 01 15 follow-up to the R4 broadcast (victim demanding apology) in the attachment to this post.

.

[nolegion]

I was, truly, absolutely delighted to be mailed this morning a correction as asked for in my post of 8th January 2015. Many thanks to the medic concerned for your interest in this thread.

 

I did think it was odd. Why one earth should the Times, as it seemed to me, spontaneously report on Glyn Elwyn's 'patientgate' article - 10 months late. As I said, I checked the BMJ via my personal online subscription and could see no update.

 

Whether that check of mine was incompetently conducted by me on 08 01 15 ( which I think is by far the most likely explanation), or whether there was in fact some small delay in the relevant article being available online via my subscription, is scarcely relevant.

 

There is indeed now a fresh BMJ article, dated 08 01 2015, in which the Prof. Glyn Elwyn goes 'head to head' with Dr Laurence ('Chuckles') Buckman (former chair of the GP Committee at the BMA) under the headlines:-

 

"Should doctors encourage patients to record consultations?

 

Patients are doing it legally anyway, and it will lead to better practice and shared decision making says Glyn Elwyn. But Laurence Buckman worries it could lead to defensive practice and risk the dotor-patient relationship. "

 

Ah!

 

Needless to say, I think that the Prof. speaks as the voice of heroic, patient-orientated sanity against the risible, self-serving weaseldom of his debating opponent. Otherwise, I am completely neutral, of course.

 

I am looking forward to coming back to this article in as much detail as I dare in the light of copyright considerations, as soon as I can.

 

(A link will lead to a paywall, but citation details and the commencement of the aricticle are available there, and sometimes, published responses, if any, are readable without subscription:-

 

http://www.bmj.com/content/350/bmj.g7645 )

[nolegion]

I wish most earnestly that I could reprint here that most recent BMJ article about patients who record, so any interested party could form their own views about it uncluttered by my screed; and I would much like to hear the views of those so informed.

 

Last time (March 2014) it was easy to direct people to the full text of a BMJ article because it was published under Professor Elwyn's name at a different medical site with no paywall. I have no inside knowledge, but I strongly suspect that was a result negotiated into place by the author at the time the BMJ was first given the article's text.

 

This time there are two authors, of course, and so far no full text appears elsewhere. If anyone has spotted\spots such a version, I do hope they might drop a link into this thread. (I have repeatedly searched under the article's full title, and while plenty of 'reference' is appearing at websites\via twitter etc. – still no full version.)

 

In the absence of such, people (unless they have their own access to the BMJ directly) will have to put up with my description and views of the arguments concerned, to avoid my incurring (or, more importantly perhaps, CAG incurring) the wrath of the BMJ for breach of copyright. This is frustrating, and far from ideal. Any takers?

[BazzaS]

I wish most earnestly that I could reprint here that most recent BMJ article about patients who record, so any interested party could form their own views about it uncluttered by my screed; and I would much like to hear the views of those so informed.

 

Last time (March 2014) it was easy to direct people to the full text of a BMJ article because it was published under Professor Elwyn's name at a different medical site with no paywall. I have no inside knowledge, but I strongly suspect that was a result negotiated into place by the author at the time the BMJ was first given the article's text.

 

This time there are two authors, of course, and so far no full text appears elsewhere. If anyone has spotted\spots such a version, I do hope they might drop a link into this thread. (I have repeatedly searched under the article's full title, and while plenty of 'reference' is appearing at websites\via twitter etc. – still no full version.)

 

In the absence of such, people (unless they have their own access to the BMJ directly) will have to put up with my description and views of the arguments concerned, to avoid my incurring (or, more importantly perhaps, CAG incurring) the wrath of the BMJ for breach of copyright. This is frustrating, and far from ideal. Any takers?

 

http://www.bmj.com/content/350/bmj.g7645

 

14-day free trial access is available.

[nolegion]

Many thanks for the response BazzaS.

 

I've tried before – and in the light of your post I have tried again – but I can't get the BMJ's 14 day free trial 'to work', at least in so far as access to topical articles is concerned.

 

I get confirmation that I'm 'allowed in' by virtue of the trial period, but if, as I have just done, I seek to read e.g. the Elwyn\Buckman article via that route, I get blocked – so it's back to the £subscribe-login I maintain.

 

The assumption should be, I hasten to add, that this is due to my techno-incompetence and\or failure to read small print. Could you\anyone confirm the process for getting access to the article I am on about, for free?

 

On the plus side, if you 'register' for 14-day freebie access at the BMJ, the 'required' boxes are fairly innocuous, and you do not have to give credit card details for later (possible) subscription. So, nothing ventured…

[nolegion]

My views on:-

 

"Should doctors encourage patients to record consultations?"

 

BMJ article 08 01 2015

(link to part of article: http://www.bmj.com/content/350/bmj.g7645)

 

 

PRELIMINARY MATTERS

 

I think the first thing to notice is that this article was 'commissioned,' presumably by the BMJ itself, from the medics concerned. I assume the editorial staff devised the debatable question of the title and gave Professor Glyn Elwyn and Dr Laurence Buckman a limited number of words in which to frame their arguments.

 

This would appear to mark a further stage in the maturation of the topic of this thread amongst the medical profession. I thought when Professor Elwyn got his earlier article on the subject published by the BMJ last year (March 2014), the subject could be said truly to have 'come of age'. That the BMJ itself should now wish to keep the topic thoroughly alive and in view illustrates its continuing importance to both patients and doctors, and in some very important respects things have definitely 'moved on'.

 

For instance, this is no longer a debate about whether a significant number of patients do, in fact, want to take recordings home. There has been enough recent commentary stemming from medical insurers alone to indicate the increasing prevalence of this initiative in patients' hands.

 

Further, it is also no longer, primarily, a debate about the legality of the initiative. In a way I much warm to, Elwyn anchors his discourse to the law near the end of his piece:

 

'…at least be aware of the law. It is legal for patients in the United Kingdom to record their clinical encounters, even covertly and without the clinician's consent.'

 

While I am absolutely sure it is necessary to keep emphasising this until it sinks into even the most bone-headed of medics, not even Buckman dares contradict this analysis. Albeit with little grace, he concedes:

 

'...doctors should usually permit recording by patients (because it is the patient's consultation and a legal right)… '

 

The heads of discussion now really are a long way from how the subject was being treated by much of the medical profession five years ago.

 

Also preliminarily, there is the question of the question put. If you accept a debating topic framed in a particular fashion, you have to do your best with it, even if, although you support the idea in general, you think the wording needs a caveat or two.

 

I suggest it would have been better framed to refer to whether patients should be clearly and 'generally' advised that they are welcome to take an audio recording home for their personal purposes if they wish. I am wary of a word like 'encourage' in context. It implies a degree of pressure or persuasion as opposed to a genuinely 'open' offer. And I would give short shrift to anyone - whether a medic or another patient – who tried to tell me how I should prefer to consult: recording, overt or covert, is not for everyone.

 

I think that Elwyn is probably alert to this notion when he frames his conclusions:

 

"…doctors should encourage patients to record clinical encounters where they wish to do so…" [Emphasis mine]

 

The consideration doesn't arise in Buckman's case because he says:

 

"…doctors …should not encourage it." [i.e. recording]

 

in any event.

 

 

PROFESSOR ELWYN'S ARGUMENTS

 

In the time-honoured fashion of the didactically experienced, Elwyn outlines what he is going to say, then he says it, and then he reinforces what he has said. Happily, despite copyright problems, by virtue of his 'speaking' first, anyone can read his outline, in the truncated version of the whole piece you can access via the link at the outset of this post. You can also see a significant part of what he has to say about the potential for 'improved care'.

 

The issue of the value patients report placing on recordings cannot be overemphasised, in my view.

 

The studies Elwyn cites refer to situations where medics have volunteered to provide patients with audio recordings but, as he acknowledges, the principle can equally apply to patients taking recordings themselves. I know for sure that for me, personally, listening again to my recordings of consultations has been extremely beneficial to my care – and that's without anyone but me listening to them at home.

 

As regards any immediate benefit during consultation itself – where the doctor knows of the recording – there may well be a lack of significant data to date as Elwyn mentions. But the obvious point, as he makes it, that:

 

"... it would be odd if clinicians didn't adhere to good practice when they knew they were being recorded"

 

is in fact often overlooked.

 

In my career as an 'overt recorder', for over a decade, no doctor has ever been rude to me during a consultation, or failed to let me present symptoms and concerns in a way which I find useful, or stopped me asking questions at the time and in the fashion I choose. And if, when I check my medical records, I think something is inaccurate or misleading in them – which has happened more than once – I get the record changed without protest. Sadly, all too many patients cannot say much of the foregoing.

 

To my way of thinking, there is a slight loop, or compression, of argument in Elwyn's next step - to his favourite subject of 'shared decision making'. I don't doubt the practical and academic delights arising because:

 

"For the first time, verifiable, data about a clinician's ability to deliver evidence based medicine and shared decision making would be in the patients' hands."

 

but we are not provided with an explanation of how the patients' own recordings leave their hands and reach the ears of the (implied) other doctors doing the assessment of performance.

 

In practice, I don't think there should be a real problem. A little humility would secure either patients' consent to a genuine request such as, 'May I also record?', or the volunteering by patients of recordings both for generalised research and for the evaluation of specific doctors' performances.

 

Humility, however, is, I would say, not always a doctor's longest suit; and, in my view, it is the absence of humility which is largely responsible for the absence of shared decision making in the first place.

 

As his outline said he would, Elwyn then turns to the issue of 'trust and openness':-

 

" Doctors who are willing to be recorded will be viewed as having nothing to hide."

 

I think this unarguably true, and very important. It is the other side of the same coin minted by an annotator to one of the earliest UK based online articles about recording. I'm not pausing to check the precise date and wording in what is now GP Online, but in the Spring of 2010 someone landed the point that doctors who present themselves as hostile to recording present themselves as untrustworthy.

 

As regards patients recording covertly, Elwyn gives us a tantalising glimpse into the research data he and others from the Dartmouth Institute gathered last year:

 

"My research shows that they do this because they fear asking permission lest it be denied and they are viewed as difficult patients who don't trust their doctor (unpublished data)."

 

No surprises there, I suggest, but I'm very glad to think that an 'evidence base' is likely to materialise in support of the intuitive and supposedly anecdotal. I would much like to see the full research results as soon as possible.

 

Perhaps I could just highlight the word 'fear' as very real experience as well as an expository construct: patients\ relatives have told me that they, literally and sincerely, fear for their lives, or those of their loved ones, if they try to record how they are treated. I don't doubt them.

 

Finally, research notwithstanding, I am not sure that it will ever be 100% true to say, as Elwyn:-

 

"Encouraging patients to record consultations would circumvent their recording encounters covertly…"

 

but I am sure that letting patients know in advance that it is an entirely acceptable option for patients to take an audio recording home would be a very considerable step in that direction. Perhaps a vital step.

 

I thought Professor Elwyn's piece was clear, cogent and thoroughly useful. There's considerably more detail in it than I have alluded to, even in a relatively short script, but I hope I have given a reasonable impression of some of the main elements of his arguments and my own views concerning them.

 

 

DR BUCKMAN'S ARGUMENTS

 

By publishing accident Professor Elwyn's opening paragraph or two are readily available for inspection. I will at least partly balance that here with Dr Buckman's introduction:-

 

' My objections to encouraging patients to record consultations are not based on some patronising view that the doctor knows best and does not want to be tripped up but rather on a series of practical and professional problems that such recording would cause.'

 

This is much like someone saying, 'I don't want to be rude but…' when you know immediately that what is going to follow will turn out to be to be very rude indeed.

 

In my opinion Buckman's contribution drips with arrogance and condescension from start to finish, but if I stop at every turn to pour out the contempt I believe richly deserved by such attributes, I will never get through the supposed 'practical and professional problems' at all.

 

So what are these problems, principally?

 

First, Buckman says:-

 

'… the act of recording alters the way the discussion goes'

 

and he explains that he modifies his behaviour when he knows he is being recorded.

 

The answer to this is always, in my book, "Good – but what a shame you don't modify your behaviour when you don't think you are being recorded."

 

Several of the next few 'points' belong to some strange parallel Buckman-universe unknown to science. For instance:-

 

'…the process of setting up recording equipment, inevitable if the patient is making the recording, would take precious time away from the consultation, even when it works well. '

 

In the real world it usually takes less than 5 seconds to turn on a mobile phone, I believe.

 

Then there's this absolute 'lulu':-

 

'Patients do not need to record consultations if all they want to do is refer later to details of what has been said. We have a long tradition of giving written material to patients, and a longer one of giving patients a written note of the key facts that they need to take away with them'

 

Gentle readers, if such you be, pray tell on which remote planet in our galaxy is that specious claptrap remotely true?

 

The nearest you get to this in the NHS, in my experience, is when patients insist that a copy of a letter one doctor says she is about to write to another gets sent to the patients themselves. Even this has only been NHS policy since the Inquiry into the Bristol Royal Infirmary reported in 2001; it's seldom if ever 'advertised' as a patient right; and when you do insist on it you get looked at as if you were trying to steal the doctor's wristwatch.

 

As often as not in my case, I have to remind\chase up the copy letter because it in fact hasn't been sent to me. I have to see a consultant every three months for a condition diagnosed last year, and the copy letter (to my GP) from my first such appointment arrived about a week after I had had my second quarterly consult.

 

The notion that patients can rely on doctors to give them prompt and adequate written information about their own health belongs to cloud cuckoo land.

 

Furthermore, even if the entire system changed such that this was done, fully, properly and promptly after every clinical encounter (in which case I think doctors would find their time more extensively consumed than during the agonising aeon of 5 seconds wait while a patient turns on a mobile phone) a doctor's written summary is still NOT the same as a patient's having a recording of a consultation. Not at all.

 

The letter I have just referred to as receiving 3 months late wasn't a bad summary of the consultation – but it wasn't a particularly good one either. By accident it slightly misrepresented some of the information I had supplied, and I was able to confirm (to myself) that I had given the correct information by listening to my recording. The written record has now been adjusted at the hospital's end with revised information being sent to my GP.

 

Furthermore, the letter didn't contain some of the advice which I had found most valuable the during the consultation itself. It's easy to see why: because it was fairly basic stuff about the condition concerned, and the consultant was assuming that the GP would already know it. But I have listened to that basic advice several times over at home, and been glad to.

 

Patients can find recordings useful in many different ways in and different circumstances, and it is immensely, disgracefully, arrogant for a doctor claim to know to what must be 'best' for the patient in terms of the information the patient wishes to retain. But that is exactly how Buckman proceeds next:-

 

'Many doctors encourage people to take notes, though this also slows things down. A note is a summary, not a verbatim description and is much more likely to be useful as a result.'

 

No further comment on that just now – for fear of my breaching this site's rules about vulgar language.

 

The remnants of Buckman's efforts can be summarily dismissed as 'non-points':-

 

Under the heading, 'Misuse':-

'

Non-point 1: ''…the recording can be given to third parties without both parties' permission"

 

No such permission is required. Patients can share information about how they are treated behind closed door with whomsoever –the–hell-they-like. Get real.

 

Non-point 2: "… it can be used as evidence against the doctor"

 

Yes, recordings can be used as evidence. There is a growing list of medical practitioners disciplined or struck off on the strength of them. That's a GOOD thing: get used to it. Why would one want to share a profession with the likes of e.g. Mao-Aweys, who was struck of in connection with FGM pretty much entirely on the basis of recorded evidence?

 

[Recordings can also be used as evidence against]:-

 

Non-point 3:

 

"… the patient "

 

What?!

 

Non-point 4:

 

"…other people who are being discussed by the patient"

 

Now we are deep into la-la land.

 

Non-point 5:

 

"…other people who are being discussed in some way….by the doctor during consultation."

 

If a doctor is imparting confidential personal information to patients during consultation e.g. about other patients or staff, then there is something very wrong with the doctor. I know, let's get her struck off with the aid of a recording.

 

 

CONCLUSIONS

 

Apart from the question of legality, there is little to no point of contact between the views expressed by the two sides of the debate.

 

Elwyn mentions a concern about recording by patients prompting 'defensiveness' amongst doctors, which includes matters like 'overdiagnosis' and 'overtreatment'. (I am not sure I have ever really thoroughly understood this type of argument, and in any event Elwyn evaluates the risk as 'transient and small'.)

 

Ostensibly in a similar vein, Buckman mentions his concern 'that doctors will react defensively', but on closer examination this looks more like the risk of a doctor indulging in a hissy-fit during the consultation, than anything more long-term or strategic.

 

In my opinion, the overarching and emphatic disparity between the presentations arises because Elwyn repeatedly looks at the whole situation from the patient's point of view, while Buckman is always looking at it from the point of view of a doctor – or more specifically a doctor's inflated ego.

 

Even when Elwyn is considering other doctors analysing the recordings of consultations, which I can certainly see from a senior academic physician's position in his speciality is a VERY attractive goal – all that lovely data! – this is hugely grounded in the prospect of such exercises improving the way doctors consult, and, although he does not actually use the word, genuinely 'empowering' patients in the process.

 

The acknowledgment that there really are things which doctors should try to do a hell of a lot better is inherent in his approach. And even if the process of adjusting to being recorded involves some initial stress amongst some, or even a lot, of doctors , in Elwyn-world that adjustment must nevertheless be made if recording will improve patients' healthcare. This is a world I like.

 

In contrast, Buckman twice describes recording by patients as an 'interference:' first 'with the consultation' and then 'with the precious doctor-patient relationship'.

 

The point is, of course, is that that precious doctor-patient relationship is only precious to the likes of Buckman when it is being played out in a way which entirely suits Buckman's image of himself. It thus includes a self-perceived, unaccountable and immutable model of consultation stranded in Buckman-world, and we are left in no doubt as to which person is the more preciously important in the relationship conducted by means of it.

 

Quite specifically – and truly I am not kidding you - he spells out that there only two circumstances in which the audio recording of a consultation 'has a place', and these are:-

 

- if the doctor wants to do it "for educational purposes"; or,

 

-"...for patients who are unable to read."

 

Feeling sufficiently patronised, anyone?

[nolegion]

In "other news" during last week:

 

1. The ICO has now acknowledged that the CJEU Rynes case about domestic CCTV causes a headache:-

 

"We are talking to the Ministry of Justice about the effects on our UK law. We'll be studying the judgment in detail before deciding what steps we need to take, starting by considering where our CCTV code of practice might need updating and what guidance members of the public will now need. Once we’ve done that, we’ll provide another update."

 

From ICO E-newsletter, January 2015:-

http://ico.msgfocus.com/q/1AFB31cD3v/wv#story5

 

 

2. Meanwhile the CQC has been conferring with the ICO about surveillance in Care Homes:-

 

"The leaflet for the wider public on covert surveillance for families, carers and people who use health and adult social care has been redrafted to reflect the comments made at the November Board meeting.

 

CQC has subsequently shared the public leaflet with the Information Commissioner’s Office, experts by experience at a workshop in December, and through our online forums, to seek further feedback."

 

The CQC says it plans to publish the guidance before the end of this month.

 

(Information from a paper with the Agenda for next week's CQC public Board meeting 21 01 2015, page 4)

http://www.cqc.org.uk/sites/default/files/CM011504_item_4_chief_executive_report_final.pdf

 

 

3. Google Glass in its current form get parked, but perhaps will be test-driven before long as a new model:-

http://www.bbc.co.uk/news/technology-30831128

[nolegion]

At a USA website called MEDSCAPE a detailed article about patients recording was published shortly before Christmas (Your Patient Wants to Record You; When Should You Refuse?) Over 60 comments were appended to it straddling the festive season and into the new year.

 

Not all of those comments survive, but amongst those that do, I count contributions from about 45 separate American doctors. The overwhelming majority of those expressed themselves, often vehemently, against the idea of patients taking audio recordings of consultations home.

 

In my view the piqued vanity, irrationality, contempt for patients, and naked fear of such a crowd is all too painfully obvious.

 

(When commenting about 'progress' in a recent post, I guess should have made it clear I was thinking about discussion in the UK.)

 

One brave soul suggested (02 01 015) that:-

 

" Since anyone with a phone can surreptitiously record, this article is passé. "

 

He escaped unscathed though – perhaps largely unnoticed, because the initial frenzy of comment had subsided over the previous couple of weeks.

 

Then again, perhaps contributors had already taken on board the advice of a "Dr J.M", a few days earlier:-

 

" For those who are concerned, a portable frequency-varying white noise generating counter-recording device is easily utilized to defeat unauthorized audio recording. Cost is fairly modest ($150-200 to cover an exam room with a pocket sized device.) Maybe this should now be standard medical office equipment…"

 

So this means war…?

 

Good, flaming, grief.

 

The entire caboodle is available here:-

 

http://www.medscape.com/viewarticle/835195_1

 

But be warned there is a registration 'faddle' to go through. (Although a quick, FREE and painless one. You do not even have to await a confirmatory email. You get straight in after filling in the few boxes.)