When Patients Hit Record in the Healthcare Setting
As technology continues to advance, more patients are recording their visits with or without your knowledge. Your first reaction may be to prohibit patients from recording any visit, but there are situations in which recording a visit can be beneficial. Recording a visit can help improve recall, enhance communication and understanding from the patient’s perspective, and can impact family involvement in care if they are unable to attend. The opposite side of this situation is that recording can bring some legal or ethical implications and privacy concerns and impact communication in a negative way. Since this is a growing issue, an organization should develop a policy on video/audio recording in the healthcare setting. This tip will help you navigate this topic by identifying your state laws regarding consent requirements and things to consider when developing a plan/policy. Consulting with your legal counsel for specific guidelines as you develop organizational plans is always encouraged.
State Laws – What You Should Know
Know your state laws and requirements. Maine only requires one person to consent, and Vermont does not address it. Massachusetts and New Hampshire require all persons' consent before recording.
Maine
Maine law allows recording a conversation as long as one party consents, whether it is the sender or the receiver. The violation of the law is a civil offense. 15 MRS, c.102 can be found here Maine's Law on Recording & Surveillance of Private Conversations.
Massachusetts
Massachusetts law under Chapter 272 section 99; Interception of wire and oral communications provides that it is illegal to record an in-person or telephone communication without the consent of all parties. The Massachusetts law can be found in Section 99. Interception of wire and oral communications.
New Hampshire
New Hampshire law provides that it is illegal to record an in-person or telephone conversation without the consent of all parties § 570-A: 2. However, New Hampshire law does make an exception in cases where the person or people communicating are doing so in an environment where they should not be under the expectation of privacy. N.H. Rev. Stat. Ann. § 570-A: 1 can be found here NH Law Wiretapping and Eavesdropping.
Vermont
Vermont law does not contain any provisions regarding the legality of recording or sharing any audio-based conversations.
Developing a Policy
When developing a policy on audio and visual recordings, the organization should ask the following questions:
Can patients be allowed to record a visit?
Yes
- Under what circumstances?
- Will individual providers be permitted to opt out of being recorded?
- Specify that the patient's device will be used.
- When will a provider mandate that recording stops, such as in OB, and the delivery is not going as planned?
- How should patients notify the provider that they wish to record the visit?
- Where can the recording take place?
- How will you protect another patient's privacy?
- Is signage posted that specifies all of the above?
No
- How will this be communicated to patients (e.g., signage)?
- What if a provider wants to allow recording anyway?
- What will you do if you find a patient covertly making a recording?
- What will you do if you find a recording (known or unknown to you) posted on social media (Facebook, YouTube)?
- Who is responsible for enforcing all of the above?
Developing a clear policy regarding the stance on patients recording ensures a respectful and professional environment for both patients and staff. Once a policy is in place, ensuring that it is well-communicated with staff and patients will help the organization with the topic of recording in healthcare. Even with a policy in place, organizations should educate their healthcare providers that patients or family members may be recording. Providers should remain mindful and professional at all times. Below are some additional articles and resources for your reference as you continue to develop your policy.
Resources:
Adler, E. (2018). When patients hit 'record' at the doctor's office. Physicians Practice. Retrieved from: https://www.physicianspractice.com/view/when-patients-hit-record-doctors-office
n.a. (2018). Ask ECRI: Patient Recordings in a Physician's Office. ECRI.Retrieved from: https://www.ecri.org/components/PPRM/Pages/AskECRI041118.aspx
O'Hara, N., Walkergp, L., & Singh, K. (2017). Setting the record straight: patient recordings of consultations. Clinical medicine (London, England), 17(2), 188. Retrieved from: https://doi.org/10.7861/clinmedicine.17-2-188.
Saleh, N. (2020). Secretly Recording Your Doctor's Appointments - Secret recording is increasingly common and many times legal.Verywell health. Retrieved from: https://www.verywellhealth.com/secretly-recording-your-doctors-appointments-4145786
Sigman, L. (2019). State, federal laws govern whether doctor visits can be recorded. American Academy of Pediatrics. Retrieved from: https://www.aappublications.org/news/2019/04/30/law043019
Tan, S. (2018) Patients who record office visits- MDedge Neurology. Retrieved from Clinical Neurology News: https://www.mdedge.com/clinicalneurologynews/article/165736/business-medicine/patients-who-record-office-visits
Wilson Pecci, A. (2017). JAMA Viewpoint: Time to Embrace Patient Recordings in Healthcare. Health Leaders. Retrieved from: https://www.healthleadersmedia.com/clinical-care/jama-viewpoint-time-embrace-patient-recordings-healthcare
Medical Mutual Insurance Company of Maine's "Practice Tips" are offered as reference information only and are not intended to establish practice standards or serve as legal advice. MMIC recommends you obtain a legal opinion from a qualified attorney for any specific application to your practice.