Audio-recording doctor-patient consultations for later use by patients has been adopted and researched since the 1970s, particularly in oncology and paediatric care. There is evidence that patients who listen to a recording of their consultation have better recall and understanding of information about their condition and treatment; and feel more empowered to participate in their healthcare. Patients can use the recordings to share healthcare information with family, friends and other clinicians.
Technologies such as smartphones and telehealth make it easy for patients to record their consultations. It has been posited that in a future, fully-integrated and personalised healthcare system, such recording will be commonplace. In Australia, the Peter MacCallum Cancer Centre is leading the field, piloting a consultation recording app called 'Second Ears', which relies upon the consent of both parties for the recording.
While health professionals see the benefits in recording medical information discussed with their patients, they also express curiosity or concern about how the law deals with these new modes of recording when consent is provided, particularly regarding medico-legal liability (especially if the recording is taken out of context), and the ownership, security, storage and sharing of digital files. This paper will critique the Australian legal landscape applicable to consultation audio recordings. It will focus on their evidentiary use; and their likely impact on litigation rates. It will also examine how healthcare providers can promote patients' use of recordings to share information with family members whilst restraining their broader distribution via social media.