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

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.