Elwyn Glyn, Engel Jaclyn, Scalia Peter, Shachar Carmel
Dartmouth Institute for Health Policy and Clinical Practice.
Harvard Law School.
Commun Med. 2024 Jan 16;19(1):58-76. doi: 10.1558/cam.20257.
Clinicians and their employers, concerned with privacy and liability, are often hesitant to support the recording of clinical encounters. However, many people wish to record encounters with healthcare professionals. It is therefore important to understand how existing law applies to situations where an individual requests to record a clinical encounter.
We searched for and reviewed relevant legal documents that could apply to recording clinical encounters. We limited the scope by purposefully examining relevant law in nine countries: Australia, Brazil, Canada, France, Germany, India, Mexico, the United Kingdom and the United States. We analyzed legal texts for consents needed to record a conversation, whether laws applied to remote or face-to-face conversations and penalties for violations.
Most jurisdictions have case law or statutes, derived from a constitutional right to privacy, or a wiretapping or eavesdropping statute, governing the recording of private conversations. However, little to no guidance exists on how to translate constitutional principles and case law into advice for people seeking to record their medical encounters.
The law has not kept pace with people's wish to record clinical interactions, which has been enabled by the arrival of mobile technology.
