Saving trouble, saving time: the role and impact of healthcare consultation recordings in Australian legal proceedings

Abstract

Healthcare professionals have long expressed concern about their exposure to litigation if they allow consultations to be recorded. There has been little evidence available as to the validity of this concern. To address this gap and to inform policy and practice, this study examined 46 cases decided by Australian courts. It focused on the characteristics of these cases, as well as the admissibility, lawfulness, and impact of recordings. Most of the consultation recordings in these matters were made in the context of pre-existing conflicts, primarily involving personal injury, professional misconduct, and family law. Recordings had the greatest value in matters involving professional misconduct. In other matters, findings were mixed. Patients were often motivated to record by a lack of trust in their healthcare provider. The cases do not feature any consented recordings made for broader patient benefit, underscoring the view that lawful, mutually agreed recordings of healthcare consultations present a very low risk of adverse medico-legal consequences. Courts have treated consultation recordings variably, sometimes using discretion to admit recordings as evidence, even where they were obtained unlawfully. These cases support recent calls for allowing regular consultation recording and also demonstrate the value of recordings for patients and regulators, particularly in instances of professional misconduct.

I. INTRODUCTION

A. Overview

This article reports on an analysis of cases involving healthcare consultation recording in Australia. I had set out to identify the characteristics of cases involving such recording and to answer questions about courts’ and parties’ uses of recordings, the judicial treatment of unlawfully obtained recordings, and the impact of consultation recordings on court findings. As recording begins to develop beyond a niche activity in the healthcare setting, the value of this unique research lies in illuminating the downstream medico-legal ramifications of consultation recording, to inform optimal upstream policy and practice. In this article, I explain and contextualize the current state of practice and research on consultation recording before setting out the methods and findings of a detailed case analysis. I conclude that ordinary consented consultation recordings do not feature in legal disputes. Where recordings have played a role, it is most often in cases involving professional misconduct, personal or workplace injury, and family law—where a dispute is already on foot. In some of these matters, reliance on the recording has been crucial to a case’s outcome.

B. Background

Since the 1970s, there has been interest in the idea of providing patients with an audio recording of their consultation with their treating healthcare professional.¹ This can mitigate the problem of information being forgotten after the consultation. The practice of consultation recording for patients developed principally in oncology,² and its effects have been shown to be broadly positive.³ Patients given a recording to listen back to later and play to family are more satisfied with their care and their healthcare provider; demonstrate improved treatment adherence; and have greater knowledge, understanding, and recall of information about their condition and its treatment.⁴

Since the advent of smartphones, researchers, healthcare professionals, and patients have paid renewed attention to the possibilities of recording.⁵ Smartphone apps for patient-led recording have been developed, which include automatically generated transcripts, information hyperlinks, and space for notes.⁶ There is evidence that recording consultations is, if not commonplace, at least unexceptional, with upwards of 15 per cent of survey respondents in the UK, USA, and Australia reporting a previous experience of recording, and between 34 per cent and 63 per cent of respondents saying that they would consider doing so.⁷ In the present decade, the use of ‘AI scribes’ in healthcare has surged. These products ‘listen’ to consultations and use natural language processing to create a structured note for the medical record, reviewed by the healthcare professional.⁸ The products promise (with mixed evidence⁹) that professionals will be relieved of some of the burden of clinical documentation and better able to focus attention on patients. They carry risks and limitations that warrant further exploration, such as inaccuracies, biases, data protection concerns, and degrading performance over time or in different settings.¹⁰ Nonetheless, smartphones and scribes are helping to shift the recording of important consultations from the fringes towards a mainstream activity in healthcare.

C. Concern about medico-legal issues

The above developments have been accompanied by persistent unease about the ‘medico-legal implications’ of recording consultations. This unease, whilst poorly defined, centres around two elements. The first is a lack of knowledge of relevant law within a complex legislative environment.¹¹ This creates fear of inadvertently breaking the law and leads to defensive practices such as healthcare professionals denying permission to record and patients recording covertly.¹²

The second type of ‘medico-legal concern’ motivating this research is discomfort with the potential use of recordings beyond patients listening to them over again. Scenarios that trouble healthcare professionals and patients include the publication of recordings on traditional or social media and the weaponizing of recordings in legal disputes.¹³ A recent US survey found that one in three oncologists thought allowing patients to record created legal liability.¹⁴ Australian healthcare professionals similarly disclosed fear of the negative consequences of recording.¹⁵

D. Research into medico-legal implications of recording

Research about patients confirms that, in one sense, such concerns are justified. Some patients do want to record to protect their rights if they experience ill treatment from a healthcare professional. In an Australian community survey, participants said that they would consider disclosing recordings of poor treatment to police, a health service complaints department, or regulatory organization.¹⁶ One envisaged doing so ‘if something really REALLY awful and explicitly abusive happened…and I had exhausted all the proper channels of redress’.¹⁷ Patient participants in an Australian interview study similarly considered that recordings serving as evidence of poor treatment could be used in seeking a legal remedy.¹⁸

To date, research and policy development related to the ‘medico-legal implications’ of recording have focused on responding to the first problem of lack of legal knowledge and understanding. Researchers have set out the law (in Australia and overseas) and how it can be identified and understood,¹⁹ communicating legal principles in plain language.²⁰ Whilst this work is valuable, there has been a dearth of attention given to better understanding the role and impact of consultation recordings in legal disputes.

Filling this gap is important in addressing concerns about the uses of recordings beyond the clinic. Such evidence would help organizations to develop recording policies reflecting the actual, rather than feared, risk of litigation. By clarifying precedent, it could also guide future legal decision-making about applying evidence from consultation recordings.

Two older US studies addressed these matters briefly. Krackow and Buyea’s 2001 paper reported on the recording of 120 patient visits to an orthopaedic surgeon.²¹ As well as assessing patient use of and satisfaction with the recording, the authors surveyed six attorneys about the ‘legal implications’. Feedback from the attorneys was briefly reported as ‘positive, and no increased risk of malpractice exposure was perceived’.²² In a more recent study of videos of neurosurgery consultations, it was considered encouraging that none of the 6112 patients who were given a video had used it in legal action.²³ It was not clear how this outcome had been assessed, and whether any of the patients had experienced iatrogenic harm that might have been expected to result in legal action. There appear to be no studies globally examining the use of healthcare consultation recordings in court proceedings.

E. Aim and overview

The aim of this study was to identify and analyse legal cases in Australia that referred to a recording made in a healthcare context between a professional and a person receiving care. In light of the matters outlined above, I set out to answer the following questions:

• What are the characteristics of cases that draw on healthcare consultation recordings in Australia?

• What types of legal disputes feature recordings?

• What have courts said about the lawfulness and admissibility of consultation recordings (and the relationship between the two)?

• For what purposes do parties and courts use consultation recordings?

• What are the effects of recordings on dispute outcomes?

In this article, I proceed by outlining the research methods and the results of a search for relevant cases. I categorize the cases identified to answer the questions above, conducting a detailed analysis of how and why consultation recordings were utilized, and with what result. The analysis focuses on judicial decisions about the legality and admissibility of recordings.

As will be shown, the key findings of this research include that ordinary consented healthcare consultation recordings are not the subject of legal disputes in Australia. Rather, recordings commonly appear in cases where a dispute already existed. The impact of recordings is limited, except in matters involving professional misconduct. This has significant implications for the future policy and practice of consultation recording in Australia, indicating that concern about medico-legal liability associated with standard recording is unfounded.

II. MATERIALS AND METHODS

This article utilizes thematic and functional doctrinal analysis to examine relevant Australian cases.²⁴ A search was conducted in April 2022 and updated in August 2024 by Melbourne Law School Law Library staff. We sought cases mentioning a recording in a healthcare context between a professional and a person receiving care, including cases considering recordings’ legality and admissibility in court. Cases could involve any recording of a consultation between a healthcare professional and patient, including recordings by third parties (such as a family member) and recordings of court-ordered medical examinations.

We searched JADE, LexisNexisAU, WestlawAU, and AustLII using the strategy set out in Supplementary Appendix 1. The 2022 search identified 67 cases, with another 7 cases found in August 2024, and an additional case retrieved from my files, making a total of 75 cases. I obtained the cases in full text and reviewed them, extracting their data into Excel.

A. Excluded cases

I assessed the relevance of all the identified cases before proceeding with analysis. Of the 75 cases found, 28 were not clearly relevant and were not included in the main analysis for reasons outlined below (see also Supplementary Appendix 2).

• Twelve cases did not involve a healthcare professional–patient consultation. These included recordings of conversations between medical sales staff or judicial officers and clients, as well as recordings of discussions between two healthcare professionals.

• Six cases involved a clinical recording, such as video of a colposcopy, bronchoscopy, or seizure activity, with little or no verbal communication between the parties.

• In three cases, there was insufficient information about a recording to contribute to the analysis.

• In five cases, a session of Eye Movement Desensitisation and Reprocessing therapy was recorded in the context of a patient recalling past events for a non-medical purpose, usually to give evidence in a criminal matter.

• In two cases, there was mention of a recording but there was no actual recording nor application to make a recording.

One further case was removed from the main dataset as it considered (on appeal) the same episode of recording as at first instance.²⁵ The remaining 46 cases (see Supplementary Appendix 3) were relevant to the aim of this research and were analysed in detail. This analysis is reported below according to the main questions outlined previously.

III. CHARACTERISTICS OF CASES

A. Summary

The dataset included matters where the contents of a recording assisted a party’s legal claim and those where the act of making the recording was itself at issue. Most of the cases were from the past 10 years and involved either a claim for personal injury or misconduct by a healthcare professional. Commonly, cases involved a mental healthcare professional or a general practitioner (GP), and the recording was made by a patient or family member. Audio recordings predominated, usually a single instance (although one-third of cases noted multiple instances of recording). There was an even mixture of overt and covert recordings. There was (notwithstanding this summary) notable diversity amongst the cases analysed here, including a wide variety in the type of health professional involved, the type of legal matter, and other characteristics of the cases. More detailed information about the 46 cases follows.

B. Year decided

The cases were decided in the period 2000 to 2023, with the majority in the past decade (see Table 1).

This pattern is likely to reflect the growing ubiquity of smartphone voice recorders over the period.

C. Legal domains

Cases spanned different areas of law (see Table 2). Personal injury and professional misconduct matters were common, but so was family law.

D. Jurisdiction

Most matters were heard in NSW (46 per cent) or in the federal jurisdiction (28 per cent) (see Table 3).

E. Healthcare professional domains

Almost half of the cases involved a mental health professional, primarily a psychiatrist or psychologist (see Table 4). Cases involving GPs and orthopaedic surgeons were also common.

These characteristics are at odds with the body of evidence on benign healthcare recording for patient benefit, described in the introduction, in which the field of oncology dominates. The legal disputes examined here often centred on the patient or a third party being required to attend a medico-legal assessment, usually seeing a mental health professional or an orthopaedic surgeon, and making a recording as a defensive mechanism. Several of the GP cases involved professional misconduct.

Similarly, the majority (37 cases, 80 per cent) of cases involved a recording where there was a dispute on foot when the recording was made. This was either a dispute between the healthcare professional and the patient or a dispute between the patient and a third party, such as an employer, the other party in a personal injury matter, or a family member in the family law jurisdiction. Again, this signals that the recording practices reported in these cases differ from those in the literature described at the outset of this article, which are about recording to improve patients’ general recall and understanding of their condition and its treatment.

F. Who recorded?

Most recordings were made by patients (22 cases, 48 per cent) or by a third party on their behalf, usually a family member (12 cases, 26 per cent). In nine cases, a healthcare professional made the recording (20 per cent). In the remaining three cases (7 per cent), it was unclear.

G. Number and type of recording

Twenty-eight cases (61 per cent) concerned a single episode of recording. In 16 cases (35 per cent), there was more than one episode of recording, including several matters featuring recordings of multiple parties in addition to health professionals. In the remaining cases, the number of recordings was unclear (1), or a recording was planned but not made (1).

Audio-only recordings were involved in 33 cases (72 per cent); video recordings in 7 cases (15 per cent); and in the remainder (six cases, 13 per cent), either a mixture of both or the type of recording was not stated.

There was a mixture of overt and covert recording. In 17 cases (37 per cent), the recording was made covertly; in one instance (2 per cent), an initially covert recording became overt when discovered by the healthcare professional; in 13 cases (28 per cent), the recording was overt; and in the remaining 15 cases (33 per cent), it was unclear. In at least four of the covert recordings, police had advised the party to record covertly, or a court had authorized such recording.

In the next section, I examine in detail the types of legal disputes that dominated the cases.

IV. TYPES OF LEGAL DISPUTES

While there was significant variety in the types of disputes captured within this set of cases, three types of matters dominated. These were:

• Twelve cases involving poor behaviour by the healthcare professional. This included instances where the professional’s misconduct lay in their act of recording a patient without consent;

• Sixteen cases where the patient was a claimant, for instance, in negligence or workers’ compensation, and recorded either their medical assessment that was conducted at the behest of the defendant’s legal team or a consultation involving the defendant’s healthcare professional; and

• Eight cases where there was a family law (usually parenting) dispute, and one of the parents recorded their own or another party’s session with a healthcare professional—usually a mental health professional.

The analysis that follows will proceed by first examining in detail the cases in these three categories. The remaining 10 cases, variously concerning issues in employment, criminal law, civil procedure, administrative law, and a contractual dispute, will be discussed at the end of this section.

A. Healthcare professional misconduct or criminal conduct

The fact that nine cases (20 per cent) involved the NSW Health Care Complaints Commission and a further two cases (4 per cent) involved the Medical Board of Australia is telling. Recordings played a significant role in cases of alleged unsatisfactory professional conduct, professional misconduct, and even criminal conduct by a healthcare professional against a patient. The main types of misconduct were inappropriate treatment, sexual misconduct, and cases in which the healthcare professional’s own act of recording was itself the misconduct.

1. Inappropriate treatment

Two cases, involving the same event in a NSW hospital, saw the Health Care Complaints Commission take legal action against nurses (Ms Hogg and Ms Lord) for their harsh verbal and physical treatment of a patient post-surgery.²⁶ As well as noting deficiencies in clinical care, the Commission alleged that Ms Hogg had ‘Communicated with Patient A in an inappropriate and unprofessional manner’.²⁷ The patient’s treatment was so alarming that his hospital roommate recorded it on his phone and made a statement to the police. Both the recording (20 min in length) and its transcript were admitted into evidence. In their unanimous decision, members of the NSW Civil and Administrative Tribunal noted:

The recording makes for disturbing listening. Consistent with the claims made by Patient B, Patient A can be heard groaning, moaning and repeatedly saying he was falling and fainting. Ms Hogg and, to a lesser extent, Ms Lord, can be heard to rebuke Patient A for allegedly being uncooperative.²⁸

The court noted that Ms Hogg (the more senior) had conceded the ‘appalling’ nature of her conduct, which was ‘bullying, aggressive and belittling’²⁹ and agreed that her behaviour amounted to professional misconduct. She was reprimanded and suspended for 6 months, after which conditions were imposed on her employment. Ms Lord (an inexperienced graduate nurse) was cautioned for unsatisfactory professional conduct. The recording played a significant role in this case and its outcome. This case provides a powerful example of recording ensuring the accountability of healthcare professionals for a patient’s harm.

2. Sexual misconduct

Six cases involved alleged breaches of sexual conduct rules, five by a GP and one by a psychologist.³⁰ These were dealt with either as professional misconduct matters, as criminal matters, or both.

In R v Sudusinghe, the QLD Court of Appeal dismissed an appeal by a GP from his conviction for sexually assaulting a female patient during a consultation for abdominal pain.³¹ The patient had made a complaint to the police after the assault. She was given a recording device and used it a few days later at another appointment with Dr Sudusinghe, during which she asked the doctor about his behaviour. The investigating officer subsequently played the recording to the doctor and made a written record of the latter’s responses when questioned. The prosecution tendered the covert recording at the trial, and it was played to the jury.³² Media reporting on the case stated that the patient had ‘set up her own sting’,³³ and the trial judge praised her ‘courage’ in doing so.³⁴ Despite the fact that the doctor’s ‘admissions’ in the recording were vague, this evidence played a significant role in his criminal conviction and in a subsequent finding by the QLD Health Ombudsman of professional misconduct.³⁵

R v El-Kheir was a comparable case involving a male GP and multiple female complainants. When one of the complainants returned to the doctor after an initial sexual assault, she was wearing a covert listening device on police advice. The recording was accepted by the NSW District Court as ‘powerful corroboration’ of the complainant’s evidence about the doctor’s behaviour.³⁶ It was also used by expert witnesses assessing the voluntariness of the accused’s actions and whether he was mentally ill at the time of the offending.³⁷

Similarly, in Health Care Complaints Commission v Safi, a female patient made a statement to police about her assault by a GP during a pelvic examination.³⁸ As in other cases, the police encouraged the patient to attend another consultation whilst wearing a covert listening device. In both the criminal and civil proceedings against Dr Safi, the recording and its transcript were admitted as evidence. Whilst the doctor was acquitted by the jury in a criminal trial for sexual intercourse without consent, and indecent assault,³⁹ he was found guilty of professional misconduct in the civil matter. While the Tribunal noted that ‘the parties are diametrically opposed about the meaning of what was said in the course of that recorded conversation’,⁴⁰ it considered the recording as determinative of Dr Safi’s guilt. The Tribunal rehearsed the parties’ conflicting claims at some length.⁴¹ It then continued:

However, we have before us the recording and the transcript of that recording of what occurred…[T]he advantage of listening to the recording has brought the interchange between both these persons alive…the spoken words bring greater immediacy and authenticity than is depicted by reading the spoken words alone…It is clear from the nature and extent of the interchange between Patient A and the respondent…that he conceded that he had played with her vagina and touched her clitoris as well as hugging and kissing her as she had alleged. This is undoubted corroborative evidence of what Patient A says occurred during the course of the consultation.⁴²

There were two cases in this group in which the victim recorded of their own volition. One was Health Care Complaint Commission v Avant Law, in which a patient assaulted by a GP had filmed the activity on his smartphone and provided the video to police.⁴³ The GP’s registration was cancelled as a result.

The other, Health Care Complaints Commission v Gorrell, was the only case of this type to involve a health professional who was not a GP. After Mr Gorrell had inappropriate (consensual) sexual contact with his client at her home on one occasion, she made a covert phone recording of his second visit to her home. This recording established grounds for a finding of professional misconduct.⁴⁴

It is clear from these cases that where sexual assault by a health professional is alleged, recordings can lead to greater clarity and, in many cases, to a conviction. There was only one case in this group where the recorded events were so equivocal that the decision-maker found in favour of the healthcare professional. In Health Care Complaints Commission v Kesavan, it was alleged that a GP had committed sexual offences against their patient amounting to unsatisfactory professional conduct or professional misconduct. The patient had covertly recorded twice on a device supplied by police; the first was a telephone conversation, and the second was an in-person consultation. In a criminal trial in the NSW District Court, Dr Kesavan was acquitted.⁴⁵ The allegations against him by the Health Care Complaints Commission were also dismissed, in spite of the recordings. Three of the four tribunal members found that the meaning of the recordings was uncertain. Two expert witnesses (speech pathologists) indicated that the accused’s speech patterns were affected by a stutter and by his use of English as a second language,⁴⁶ which added to doubts about the reliability of the evidence from the recording.

Overall, it is clear that one of the main ways in which recordings of healthcare consultations are used is to protect patients’ rights by providing evidence of healthcare professional misconduct. This is often with the involvement of police. Such evidence has been useful in holding wrongdoers to account in both criminal and civil proceedings, although it is not uniformly determinative of a finding against the health professional. Next, this article will outline a group of cases in which the health professional’s act of recording the patient without consent was the basis of a misconduct finding against them.

3. Unconsented recording

In two instances, recordings made unlawfully by health professionals themselves became the subject of professional misconduct proceedings. In 2015, Dr Michael Quach’s registration as a GP was cancelled for 7 years after a string of patient complaints led to action by the NSW Health Care Complaints Commission. Among these complaints were claims—upheld by the court—that the doctor ‘inappropriately and without consent made an audio recording or threatened to do so during consultation’.⁴⁷ It emerged that Dr Quach had been making audio and video recordings of patients for many years, possibly without consent and for uncertain purposes—the GP claiming that it was for ‘quality control’ or ‘to improve [his] medical service’.⁴⁸ On this and other bases, and in the context of a finding of the doctor’s mental impairment (narcissistic personality disorder), Dr Quach was found guilty of unsatisfactory professional conduct and professional misconduct.

Similarly, Health Care Complaints Commission v Ghougassian was a 2021 matter involving a neurologist who (among other things) took photographs and videos of two patients, ostensibly for clinical purposes, without adequate consent and record keeping.⁴⁹ One of the patients suffered a very rare condition, and it appears that Ghougassian intended to present their case at grand rounds at a Sydney hospital, but this did not eventuate. The Tribunal noted:

It would be very reasonable to document that patient's appearance with clinical photography at the time of presentation and to take further clinical photographs over time. It was however not usual practice for a neurologist to ask a patient to remove their bra for the purpose of taking photos or videos. … The use of video and filming of Patient B falls below the standard reasonably expected of a practitioner of an equivalent level of training or experience…⁵⁰

The Tribunal highlighted the doctor’s failure to obtain consent for filming and to store the videos correctly (later taping over at least one with video of a family event). A claim that his filming of another patient was for ‘research’ was not accepted, given the lack of a research protocol, with the Tribunal finding that this conduct was significantly below the expected standard and ‘invites strong criticism’.⁵¹ The allegation of unsatisfactory professional conduct was made out, although not the more serious ‘professional misconduct’. The Tribunal later noted that there was ‘no sinister nor intentionally improper motive in the respondent’s conduct’.⁵² These matters strongly underline the need for health professionals to adhere to legal requirements (encompassing legislation addressing surveillance devices, privacy, health records, and professional practice), policy and professional guidelines for the creation and secure storage of consultation recordings. Patients must not be subjected to unconsented recordings by health professionals.

Having examined the role of recordings in professional conduct matters, I now turn to the second major category of dispute in which consultation recordings featured: those where the patient was a claimant in a personal or employment injury claim.

B. Personal injury and workplace injury

Eleven (24 per cent) cases were in the field of personal injury, and a further 5 (11 per cent) involved workers’ compensation.⁵³ These 16 cases predominately involved consultations with either orthopaedic surgeons or psychiatrists, of which a recording was made by the patient or family member. In all but one of these cases, there was already a dispute on foot when the recording was made. Five cases featured covert recordings, eight overt recordings, and the remaining three were unclear. The role of recordings in this set of cases was much less clear-cut than in the professional misconduct matters. Only 7 of the 16 recordings (or transcripts) were admitted into evidence, and if admitted, the impact of the recording varied significantly.

1. Personal injury

a. Orthopaedic surgeons

In Papp v Finley, a plaintiff had successfully sued for injuries sustained in a car accident, and the ACT Supreme Court was considering the quantum of damages.⁵⁴ The plaintiff had been required to attend the defendant’s orthopaedic surgeon and afterwards complained about the way the surgeon treated her. The surgeon provided a recording he had made of the consultation, which refuted the plaintiff’s allegations⁵⁵ but the recording also generated concerns about the accuracy of the surgeon’s report. For instance, his report described the plaintiff as moving ‘without difficulty’; however, her groans and ‘gasps of pain’ could be heard on the recording. Ultimately, the court preferred the evidence of the plaintiff’s experts, finding that the defendant’s surgeon had been ‘overly optimistic’ and had not had regard to the severity of the plaintiff’s problems.⁵⁶ Being able to listen to the recording played an important role in this determination.

Recordings of orthopaedic assessments were similarly treated as a means of interpreting the truth of a party’s claims in Hooker⁵⁷ (to the plaintiff’s detriment) and Dance (to the plaintiff’s benefit).⁵⁸ In contrast, it had no bearing on the findings in Hula v Hui Yu.  ⁵⁹ Finally, Ankomah⁶⁰ was merely an interlocutory matter in which a plaintiff injured in a traffic accident successfully sought to obtain a copy of the consultation video made by an orthopaedic surgeon appointed by the defence.

b. Mental health professionals

There were three personal injury matters involving recording or (possibly) attempted recording of mental health professionals, but in none of these matters did the recordings play any significant part. In Tauri, a defence-appointed psychiatrist suspected that the plaintiff in a personal injury claim was audio recording or taking photographs, but this allegation was not made out. Although nothing turned on the recording, Rothman J made important comments about the likely lawfulness of such covert recording (discussed in Section V.B).⁶¹ In Covington-Thomas, an attempt by the plaintiff to record (first covertly, then overtly) failed when the psychologist ‘ultimately endeavoured to wrest the tape recorder from him, such that it fell to the floor’. The consultation was immediately concluded. The recording was not sought to be admitted into evidence, and it was not clear (even, apparently, to the plaintiff himself) what the recording’s purpose was.⁶²  Branagan made reference to the plaintiff’s partner recording a mental health assessment, but there was no further mention of the recording.⁶³ Hence, it is difficult to draw any firm conclusions from these cases about the role or desirability of making recordings of mental health professionals.

c. Other personal injury matters

Two cases dealt with claims of personal injury following surgery. In Nigam v Harm (No 2),⁶⁴ the plaintiff sued a doctor who had performed an appendectomy, claiming that she (the plaintiff) had been misled about how the procedure would be performed. She had recorded a subsequent appointment with the doctor, and the court relied on a transcript of that recording to find in the doctor’s favour:

The transcript of the respondent's consultation with Dr Hastwell…is consistent with the respondent's assumption being simply her own, unexpressed, assumption, not an assumption induced by Dr Hastwell.⁶⁵

Another matter involving a dispute over a surgical procedure considered a video recorded on a mobile phone by the plaintiff’s husband. Here the recording was inconclusive.⁶⁶ Finally, a DVD of childbirth filmed by a family member was admitted into evidence in a negligence claim for the parents’ pure mental harm (after a difficult delivery had resulted in their child being born with cerebral palsy), but again, its impact on the court’s decision-making was limited.⁶⁷

These 11 cases in personal injury, considered overall, demonstrate that plaintiffs have only rarely been able to use recordings of their medico-legal examinations to their benefit—and only in cases involving orthopaedic surgeons. The preference shown by plaintiff patients to make recordings likely speaks to their strong distrust of those clinicians with whom they are in dispute or whom they are required to consult as part of legal proceedings.

Next, the recording of medico-legal consultations in workers’ compensation matters is examined.

2. Workers’ compensation

In three of the five workers’ compensation matters, the applicant recorded their assessment by a healthcare professional appointed by the defendant/respondent.⁶⁸ Similar to findings in the previous section, this did not appear to aid the applicant’s claim in any of the three cases. In Lim v Comcare, the applicant asserted that in order to protect her lawful interests she had covertly (but lawfully) recorded her assessment by a psychiatrist. In the Tribunal’s view, this was likely an unlawful recording and it exercised its discretion to exclude the recording as evidence, finding after lengthy deliberation that there ‘appears to be little efficacy in the evidence and some harm to good public policy in admitting it’.⁶⁹ In Candlish v Comcare, the applicant made a consented recording of his assessment by a psychiatrist. Although this recording was made for the applicant to use in considering and potentially challenging the doctor’s written report,⁷⁰ it played little subsequent role in the matter.

In Kelly v Comcare, the applicant covertly recorded his assessment by a defence-appointed rheumatologist ‘on the basis that he thought Dr Kostos would give a dishonest opinion’.⁷¹ The transcript was provided to the Tribunal, which referred a couple of times to aspects of the transcript regarding the circumstances of the applicant’s injury. Nonetheless, the recording had little impact on the proceedings.

In a fourth workers’ compensation matter, a recording apparently made by a psychiatrist providing a medico-legal assessment was played to the Tribunal. The Tribunal members reflected that the applicant ‘comes across on the tape very much as he did as a witness in the Tribunal in that his answers were long and direct at putting himself in the most favourable position’.⁷² The fifth case in this group considered a planned video recording at the suggestion of the psychiatrist who was examining the plaintiff in an employment claim, but in the end, no recording was made.⁷³ Overall, recordings of medical experts in workers’ compensation claims in Australia have had either no, or a slightly detrimental, impact on applicants’ claims, which aligns with my findings on recordings made in personal injury matters. The findings similarly point to a need for measures to reduce distress and improve doctor–patient relationships in these settings.

The third main category of cases is in family law, discussed next.

C. Family law

Eight matters (17 per cent) concerned disputes in family law, usually over parenting.⁷⁴ Many of these were marked by a high degree of interpersonal conflict, and half involved allegations by one parent of their child’s sexual abuse by the other parent.⁷⁵ In five of the cases in this category, a parent or third party recorded a child’s or parent’s discussion with a mental health professional to collect evidence for the proceedings.⁷⁶ Often, personal conversations as well as healthcare consultations had been recorded by one party or the other. In the remaining three cases, the recording was made by, respectively:

• a psychologist of her sessions with some members of the family⁷⁷;

• a father, against whom the mother had made various allegations, of the family’s consultation with an immunologist who was seeing their child for food intolerances⁷⁸; and

• the birth mother in a surrogacy arrangement, of her consultation with the fertility clinic about the hormone supplements she was prescribed.⁷⁹

The recording seemed to bear significantly upon the outcome of the case in only two of the eight matters. In Clayton v Bant (No 2), admissions made by the father during a marital counselling session, recorded by the mother, were relied on by the court in finding that the father had engaged in abuse or family violence.⁸⁰ In contrast, in Knill v Beckett, the father’s recordings of a healthcare consultation bore out his evidence of calm communication in the face of the mother’s allegations of his significant aggression.⁸¹ In six of the eight matters, the recording had little to no impact, aligning with the findings discussed above. It is clear that in high-conflict situations, parties often make recordings in an effort to protect their interests or even to punish another party, but such recordings rarely affect the outcome. This contrasts with matters involving healthcare professional wrongdoing (see Section IV.A), where recordings are valuable in ensuring accountability.

D. Other matters

The remaining 10 cases are somewhat novel. Whilst they resist categorization, they add to an understanding of the uses and value of consultation recordings in legal disputes.

Three matters involved an employee suing their employer for, respectively, discrimination,⁸² unfair dismissal,⁸³ and sexual harassment.⁸⁴ In the first two of these, the employee or their partner covertly recorded (on more than one occasion), the employee’s consultation with a psychiatrist appointed as part of the legal proceedings. In neither of these cases were the recordings admitted as evidence, nor did they assist the plaintiffs’ claims.

A more unusual situation was found in the third case, Ewin v Vergara (No 3),⁸⁵ in which Ms Ewin claimed her co-worker had sexually harassed her (to the extent of sexual penetration). The relevant recording was of her call to the ‘Nurse-On-Call’ telephone nursing service (which recorded all calls). The recording and a transcript were admitted into evidence and assisted Bromberg J in assessing Ms Ewin’s state of mind at the time of the conduct. This was relevant to her establishing a cause of action under the Sex Discrimination Act 1984 (Cth), namely, that the conduct had been unwelcome.

Three matters (in addition to R v El-Kheir and R v Sudusinghe, mentioned earlier) concerned criminal law. The most important for the purposes of this article is Toth v Director of Public Prosecutions (NSW), the only case in Australia where a conviction was secured against a patient who had covertly recorded a consultation.⁸⁶ The offender, Mr Toth, was sentenced to a good behaviour bond for 18 months; his appeal on the basis that the consultation was not a ‘private conversation’ failed.

Two other criminal matters are outliers in terms of this analysis, with Re SS concerning a breach of a supervision order by an ex-prisoner not to record ‘supervision and treatment sessions’,⁸⁷ and The Queen v KMD referring to a forensic psychiatrist’s request to record his assessment interviews with a person subject to a custodial supervision order.⁸⁸

The remaining four cases in this section⁸⁹ contribute to this analysis in diverse ways. Mohareb v Health Care Complaints Commission referred to several videos made by a patient during consultations with the doctor who, he alleged, had operated negligently on him, as well as with others providing medico-legal opinion.⁹⁰ The videos and transcripts were admitted but played no further part in the matter.

George v Commissioner of Police was an unusual matter in which both the revocation and reinstatement of a man’s firearms licence hinged on a phone call he had made to a NSW hospital about severe physical pain. This call had been transferred to the Mental Health Access Line, whereupon remarks he made to the call-taker were interpreted either as threats to harm a doctor or as suicidal ideation. The call was referred to police, who suspended the man’s firearms licence.⁹¹ When this matter was heard by the Administrative Decisions Tribunal, the member found that ‘at no stage…did the Applicant make any threat to harm himself or any other person’.⁹² The Firearms Registry had failed to listen to the call or to consider a report by Mr George’s psychologist. This matter had caused ‘significant inconvenience and expense’ to Mr George,⁹³ who was awarded costs.⁹⁴

Longbottom v Nulis Nominees,⁹⁵ a dispute over insurance coverage, saw Master Sanderson in the Supreme Court of Western Australia rule against an application to record a medical examination. The plaintiff had issued proceedings against an insurance company that had denied his claim.⁹⁶ An interlocutory application by the defendant that Mr Longbottom submit to a psychiatric examination was met with his request to record the examination. The psychiatrist refused to be recorded, and the defendant’s solicitors justified this on the dubious basis of ‘privacy legislation’ and ‘a concern that the examinee will replay the examination recording which poses a risk to their mental health’.⁹⁷ Master Sanderson noted that these reasons were ‘thin’ and that ‘it is at least arguable…a plaintiff who seeks further protection by recording a consultation should be entitled to do so.’⁹⁸ Eventually, though, he upheld the psychiatrist’s preference for no recording.

Finally, Hollingsworth v NSW is a recent interlocutory dispute on the conditions applicable to a medico-legal consultation between the plaintiff and a forensic psychiatrist appointed by the defendant, the state of NSW. The plaintiff sued the state in vicarious liability for an exacerbation of post-traumatic stress disorder due to alleged false imprisonment, assault, and battery by several police officers.⁹⁹ He insisted on recording his assessment by a forensic psychiatrist, who terminated the interview on that basis.¹⁰⁰ The plaintiff’s desire to record was, as the first-instance decision noted, reasonable due to his circumstances and experiences—he wanted ‘an objective record of what was said for the benefit of all concerned’.¹⁰¹ A second psychiatrist was appointed, who also refused permission to record.¹⁰² The question for the court was: did the plaintiff’s request to make a recording, which was refused by the psychiatrist, amount to a failure on his part to comply with a notice for medical examination under the Uniform Civil Procedure Rules 2005 (NSW)?

The defendant’s proposed order that the examination take place without a recording was, the judge at first instance said, ‘an unacceptable limitation on the plaintiff’s rights’.¹⁰³ Judge Levy SC ordered that the plaintiff be permitted to record the assessment and that the forensic psychiatrist be required to allow such recording.¹⁰⁴ This direction was overturned on appeal,¹⁰⁵ the Court determining that the Uniform Civil Procedure Rules did not provide a source of power for the primary judge to make the specific orders about the conduct of the medical examination¹⁰⁶; and, importantly, that the plaintiff had no right to record.¹⁰⁷ The Court held that the primary judge had erred in relying on the fact that making a recording was not unlawful to support a conclusion that the plaintiff had a ‘right’ to record.¹⁰⁸

The 10 cases considered in this section demonstrate diversity in the area of law and the purpose of recording, but overall, they accord with earlier findings. In only 2 of the 10 matters (Ewin v Vergara and George v Commissioner of Police, both involving phone calls to medical advice lines) was a recording deemed to have been made lawfully, judged to be admissible, and ultimately helpful to the plaintiff/applicant. In 5 of the 10 cases, a recording was deemed impermissible, including Toth, in which the patient who made the recording was subject to a criminal penalty.

Having examined in detail the cases identified for this study, I now turn to addressing the remaining questions about the lawfulness, admissibility, intended purposes, and overall impact of healthcare recordings in Australian cases.

V. LAWFULNESS OF RECORDINGS

As noted in Section I, concern and confusion about whether making a recording of a healthcare consultation is permissible under the law have dogged wider efforts to promote beneficial consultation recording and have impacted developments in ‘AI scribe’ technology. It is also an important consideration in several of the identified cases.

Covert recordings—or recordings made with the consent of only one of the parties to a private conversation—are prima facie unlawful in five of the eight Australian jurisdictions under surveillance devices laws.¹⁰⁹ Nineteen cases considered here involved covert recordings. In four of these, the recording was authorized by police or a court order,¹¹⁰ and in one, the jurisdiction was Victoria, where making a covert recording is not unlawful.¹¹¹ Hence 14 matters involved potentially unlawful covert recording. These were treated as follows (see Table 5).

In only one of the eight cases where the court found a recording had been made unlawfully, the person was charged with this offence and found guilty.¹¹² In none of the other cases was there any significant consequence of the recording having been made unlawfully.

The 14 cases involving potentially unlawful recording are discussed in greater detail below, to provide insight into this issue for the benefit of future legal determinations.

A. Lawfulness ignored

In three cases, although a recording may have been in breach of the relevant surveillance devices legislation, the court did not raise this issue. In Health Care Complaints Commission v Avant Law Pty Ltd, a patient’s covert video recording of their GP would be unlawful under the Surveillance Devices Act 2007 (NSW) section 7(1)(b) unless an exception applied under section 7(3)(b)(i) (which it may have done). However, the Tribunal did not refer to the lawfulness or otherwise of the recording when it admitted the recording into evidence.

In Bahramy v Medical Council (NSW), a doctor seeking to return to practice after deregistration covertly recorded his consultation with a psychiatrist appointed by the Medical Council. The court hearing this matter in 2015 did not address the legality of the recording, nor did it admit the recording into evidence¹¹³—although in a subsequent hearing, it was noted that NSW police had investigated Bahramy over his apparent breach of the surveillance devices law.¹¹⁴ There was also a covert recording in Morton,¹¹⁵ but the location at which the consultation occurred, and hence the jurisdiction and legality of the recording, is unclear.

B. Exception applied

In three cases, it was noted that a covert recording may have been lawful under the exception for recordings that are reasonably necessary for the protection of a party’s lawful interests. In Tauri,¹¹⁶ a negligence matter, a doctor appointed by the defence alleged that the plaintiff had recorded the consultation. The court found that, if such recording had taken place, it may have been lawful under the exception in the NSW legislation.¹¹⁷ The court took a similar approach in Gorrell, discussed previously.¹¹⁸ In Covington-Thomas v Cth, the plaintiff initially covertly and then overtly sought to record his assessment by a defence-appointed psychologist. During a break, he received legal advice that he was entitled to record the consultation, which Kirby J of the NSW Supreme Court said was ‘foolish advice, even if it were correct in law’.¹¹⁹ As it appears that the consultation took place in NSW where the law requires two-party consent unless an exception applies, Kirby J’s suggestion that the advice was ‘correct in law’ must have been pointing to the exception for protection of the party’s legal interests.

C. Unlawful covert recording

In eight cases, covert recordings were treated as unlawful. In six of these matters,¹²⁰ the court did not consider the potential application of the exception to protect a party’s legal interests. In the seventh matter, it considered this exception in detail but found against it.¹²¹ In the eighth case, the recording was deemed unlawful under the rules applicable to Family Court proceedings.¹²²

The six matters in which a covert recording was deemed to have breached surveillance devices legislation are as follows. In Breckenridge v Kudrna, a parenting dispute, the children’s mother had covertly recorded conversations and phone calls, including those between herself and healthcare professionals treating one of her children.¹²³ The WA State Solicitor’s Office investigated, since some of the recordings were of public sector staff. The court said the recordings were potentially illegal, issuing a certificate under section 11 of the WA Evidence Act 1906. In TLJ v Lai, involving a covert video of a healthcare professional by the patient’s husband, the judge noted that ‘there is an obvious argument that the evidence was obtained illegally through contravention of s 5 of the Surveillance Devices Act 1998 (WA).’¹²⁴ In Hula v Hui Yu, involving a patient’s covert recording of a doctor appointed by the defence, the court said ‘Putting aside questions as to the legality of that recording in light of s 7 of the Surveillance Devices Act 2007 (NSW), none of the matters purported to have been said by Dr Maxwell…were put to Dr Maxwell for his comment’¹²⁵ citing the rule in Browne v Dunn.¹²⁶ Hence, the court did not ‘place any weight on those matters in view of the circumstances’.¹²⁷ In Ary v Sydney South West Pathology Service, concerning an unfair dismissal claim, the Industrial Relations Commission stated:

The Applicant has breached the Surveillance Devices Act 2007 [(NSW)] by secretly recording a number of meetings [including a medical consultation]. Those recordings … are of concern to this Commission. The Applicant explained that she thought she had a legal right to use the recording device to secretly record those conversations because she considered that her life was at risk.¹²⁸

In Pettit v Fairs, a family law and child welfare matter, a child’s step-parent covertly recorded the child’s call to a counselling service. The Federal Court made it clear that this recording (by a third party) contravened Victorian law.¹²⁹

Toth¹³⁰ is the only case to directly find the criminality of a patient’s covert recording. Toth had used a pen-shaped video recorder to record his female doctor’s physical examination of a possible hernia in his groin. The Magistrate found Toth guilty under section 7(1)(b) of the Surveillance Devices Act (NSW), imposing an 18-month bond. Toth’s appeal, on the basis that it was not a ‘private conversation’ since doctor–patient conversations might be overheard by people outside the consultation room, failed.¹³¹

Only Lim v Comcare considered in depth the legality of a patient’s covert recording and its transcript¹³² under the Listening Devices Act 1992 (ACT). This Act requires two-party consent but offers exceptions, including that the recording is ‘considered by [a] principal party, on reasonable grounds, to be necessary for the protection of that principal party’s lawful interests’.¹³³ The applicant contended that this exception applied. The Tribunal disagreed, deciding that the recording and transcript ‘most probably constitute a breach or breaches’ of the legislation.¹³⁴ It reviewed the authorities,¹³⁵ finding that a party’s lawful interests ‘must be assessed in the context in which they are asserted. The test is one of reasonable necessity, and not convenience’.¹³⁶ The Tribunal found against Lim, saying that her desire for a record of the consultation or to gain an advantage in the proceedings did not amount to a lawful interest. Being a quasi-judicial body, however, the Tribunal drew no definitive conclusion about the legality of Lim’s recording.

D. Breach of Family Law Rules

In another matter involving one parent’s covert recordings of consultations with the appointed ‘single expert’ psychiatrist,¹³⁷ the Court held that the recordings were in breach of the Family Law Rules 2004 (Cth). The Court issued the mother with a certificate against self-incrimination, stating:

The Judges of the Family Court of Australia, in the exercise of their rule making power, have determined … that there should be a complete prohibition upon the recording of any attendance with a single expert for the purpose of the proceedings… The purpose of the rule is to prevent the very mischief that has occurred here.¹³⁸

An appeal against this decision failed.¹³⁹

Given the myriad circumstances in which consultation recordings feature in the diverse cases examined in this article, it is unsurprising that questions of the legality of recording are given different weight. Whilst in the above matters, some opportunities may have been missed for a party to argue that their covert recording was lawful under the exception for protection of one’s lawful interests, it is also clear that courts treat this exception narrowly.¹⁴⁰ The ‘lawful interests’ must exist at the time of the recording and not later.¹⁴¹

As is concluded in the following section, not all covert recordings are unlawful, nor are all unlawful recordings inadmissible. I will now consider how the courts have dealt with applications to admit healthcare recordings into evidence.

VI. RECORDINGS’ ADMISSIBILITY

Although it might be expected that if a recording was made unlawfully, it would also be inadmissible, these are (correctly) treated as distinct issues. The Australian High Court in Butera v DPP established that recordings (in general) are admissible if the content is relevant and otherwise admissible, the voices are properly identified, and the provenance is proved.¹⁴² Courts can apply their discretion under evidence law to admit recordings that are relevant.¹⁴³ If a recording was created unlawfully, the court must weigh the ‘desirability of admitting the evidence’ against the ‘undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained’.¹⁴⁴ Courts can take account of factors including the probative value of the evidence, its importance, and the gravity of the contravention of the law in obtaining the evidence, and whether that was deliberate or reckless.¹⁴⁵

The cases show the courts reaching different decisions based on the exercise of this discretion. In Lim v Comcare, the ‘working out’ was done in considerable detail,¹⁴⁶ with a decision to exclude a recording based on: the likely impropriety involved in making the covert recording; its low probative value; and the Tribunal’s desire to avoid creating a precedent that would encourage litigants’ covert recording of expert witnesses and the ‘invasion of the privacy of their surgeries and consulting rooms’.¹⁴⁷ The NSW Industrial Relations Commission was more blunt in Ary v Sydney South West Pathology Service, an unfair dismissal application in which the applicant covertly recorded her consultation with a psychiatrist. The Commissioner stated that ‘[T]he Commission cannot allow a secretly taped consultation recording to be tendered in the proceedings.’¹⁴⁸ Similarly, a court rejected a recording by a child’s stepmother of the child’s call to Kids Helpline, which had been tendered by the child’s father in a parenting dispute. It held that the recording had contravened the Victorian Surveillance Devices Act and lacked proof of authenticity.¹⁴⁹

In other instances, however, after this type of weighing exercise, covert recordings have been admitted. For instance, Gorrell (discussed previously) saw the NSW Civil and Administrative Tribunal asked to rule on an application by the Health Care Complaints Commission for disciplinary findings against Gorrell, a psychologist. The Tribunal considered evidence from a recording covertly (potentially unlawfully) made by the complainant.¹⁵⁰ The respondent was given the opportunity to object to the Commission’s reliance on the recording but did not do so.¹⁵¹ The Tribunal stated:

It is not in dispute that the practitioner did not know that he was being recorded, and that he would not have consented to the recording had he been asked. Whether or not the recording was made in breach of s 7(1)(b) of the Surveillance Devices Act 2007 (NSW), or whether, as submitted by the HCCC, that prohibition would not apply by operation of s 3(b)(i) of that Act, the practitioner accepted that the transcript of the audio recording…is accurate.¹⁵²

The Tribunal made no determination about the recording’s lawfulness but nonetheless admitted it into evidence.¹⁵³ Similarly, in TLJ v Lai,¹⁵⁴ a recording that was likely obtained unlawfully was considered in evidence based on the authority of Georgiou Building v Perrinepod Pty Ltd.¹⁵⁵ The latter was a 2012 decision concerning an unlawful recording of business dealings. The Court in Georgiou exercised its discretion to admit the recording, weighing the seriousness of the breach, the recording’s circumstances, and the possible prejudice of such admission to any party.¹⁵⁶ Based on the authorities considered here, it would be difficult to prejudge the likelihood of an unlawfully made recording being admitted into evidence.

VII. THE VALUE OF RECORDINGS

The value of having a recording to clarify the facts of a matter emerged in several cases. Notably, this includes a case—Friend v Rye—which was excluded from the main analysis because the recording did not involve a healthcare professional; nonetheless, in this matter, the judge reflected in obiter:

It is, unfortunately, the case that in some personal injury cases … some medical practitioners incorrectly record details of the history given by the patient or omit to note something said in passing. Much trouble and time is often spent resolving these errors. Tape recording medico-legal consultations would be of considerable assistance in avoiding these kinds of controversies.¹⁵⁷

In Longbottom, the dispute about life insurance policy coverage discussed earlier, the plaintiff argued on the same lines. He sought (without success) an order to permit the recording of his psychiatric assessment, asserting that ‘Rather than rely on the plaintiff's memory…an audio recording would settle all disputes. Further…the audio recording would indicate the tone in which the consultation took place.’¹⁵⁸ Other matters in which recordings were treated as a source of additional insight or clarification were Ewin v Vergara,¹⁵⁹  George v Commissioner of Police (NSW),¹⁶⁰  Dance v Jemeas Pty Ltd,¹⁶¹  Nigam v Harm,¹⁶² and Papp v Finley¹⁶³ (discussed earlier).

VIII. DISCUSSION

This article is the first to examine how Australian courts have treated recordings of consultations between healthcare professionals and patients. This analysis is crucial to inform our understanding of the circumstances likely to give rise to a recording and the probable impact of such recording. It reviews a unique dataset of relevant cases, advancing knowledge about the ‘medico-legal implications’ of consultation recording, the absence of which knowledge has long dogged efforts to embed beneficial, consented recording into healthcare systems.

The analysis reveals a predominance of matters involving the recording of a healthcare professional behaving abusively, as well as those where a plaintiff sought to record either the defendant’s healthcare professional or the defence-appointed medical expert. Recordings for evidence gathering in family law were also common but rarely of benefit to the party making the recording.

The analysis shows that consultation recordings land in courts when there is high conflict between parties, especially when patients have little trust in the healthcare professional that their own interests will be protected (whether or not this view is warranted). It suggests that healthcare professionals acting as medical examiners in legal disputes (eg personal injury) might do more to assure patients of their impartiality and professionalism. Permitting consultation recording in the ordinary course of care can be seen by patients as indicating that a healthcare professional is trustworthy and that the relationship is valued.¹⁶⁴ Policies that allow and even promote such recording across the healthcare system may lead to stronger therapeutic alliances and diminish patients’ desire to record as a defensive mechanism.

These findings also suggest that courts could be more sympathetic to patients who have covertly recorded in potential breach of the law, through broader application of the exception for protection of a party’s lawful interests. Healthcare professionals should find reassurance here that, absent explicit wrongdoing on their part, recordings of consultations rarely impact their interests in a negative way.

The cases also emphasize that professionals must adhere to legal requirements and professional guidelines when making and retaining recordings. Ensuring specific patient consent and secure, designated storage is necessary, in accordance with state and federal privacy, data protection, and health records legislation.

Courts have sometimes, although not uniformly, dealt harshly with both patients and healthcare professionals who have recorded the other party covertly, in breach of the law. Similarly, courts have adopted varying approaches to the admissibility of such evidence. The analysis suggests that legal professionals and judges may be unaware of precedential Australian cases in terms of decisions to permit recording on application and to admit unlawful covert recordings into evidence.

A. Limitations

Despite a comprehensive search, it is possible that some relevant cases may have been overlooked. The analysis is based only on publicly available reports. Most legal disputes are settled before they reach court,¹⁶⁵ and it is likely that consultation recordings have played a role in many such matters.

This study was completed by a sole author. Decisions to exclude certain cases from the analysis were not reviewed by a second person. Some of the excluded cases might yet yield useful insights into recording.

IX. CONCLUSION

Recordings of healthcare consultations can serve diverse purposes for patients and professionals. Over decades, researchers have carefully built an evidence base for consented recordings of key consultations, with the aim of improving patients’ healthcare experience and their health itself. Technological progress has made recording consultations more widely available and more useful, but these possibilities have been obstructed by fears about social and legal consequences. Discussions about ‘legal implications’ of recording have, until now, proceeded on the basis of hope and hypothesis. Along with others, I have previously suggested that there is no evidence that recordings increase litigation and that permitting recordings might reduce the likelihood of disputes arising, since they remove the problem of consultations being remembered differently by each party.¹⁶⁶

We can now draw much firmer conclusions based on the evidence from Australian cases, which show that most recordings considered by courts have been made in the context of an existing dispute. By comparison, consented recordings of ordinary healthcare consultations are not giving rise to legal claims that reach the courts. None of the cases examined here involved a consented consultation recording in the absence of some form of disagreement.¹⁶⁷ This adds weight to others’ advice that ‘doctors acting professionally should have nothing to fear’¹⁶⁸ and to a view that the regular availability of consented recordings can significantly bolster the quality of the relationship between healthcare professionals and patients. This can be said even of recordings of defence-appointed medical examiners by patients who are plaintiffs. There, patients have rarely gained an advantage by recording, and doctors have rarely been disadvantaged. However, where healthcare professionals are not acting professionally, recordings have been shown to be a valuable tool in the hands of patients and bystanders (such as patients sharing a hospital room) in ensuring accountability.

Where courts have relied on recordings, this has sometimes been determinative of a matter and helped achieve a just outcome. As Justice White noted, much ‘trouble and time’ spent in resolving legal disputes could be saved through timely reference to a recording.¹⁶⁹ Balancing the interests of patients and doctors in privacy and information access when considering recording remains key, but it is now possible to proceed with certainty that the medico-legal risk of consented recording is negligible.

Acknowledgements

The author thanks Melbourne Law School research assistants and library staff who supported the search for relevant cases.

Supplementary data

Supplementary data is available at Medical Law Review online.

Funding

None declared.

Conflict of interest. None declared.

Footnotes