Today’s question is inspired by an article in the British Medical Journal –

Abi Rimmer, ‘My patient wants to record our appointment, what should I do?’ BMJ 2019; 364 doi: https://doi.org/10.1136/bmj.l1101 (Published 19 March 2019).

The conclusion in that paper is:

“The request to record a consultation is not a hostile one, loaded with the intention of setting up barriers or conflict. Most patients are not familiar with medical terminology. They are in distress, and they want to listen and to understand, even though they’re struggling. Ultimately, they want to be heard and understood. They want a two way conversation where their priorities count. So, let them record with no strings attached. I imagine doctors may worry about the possibility of litigation or being held to their word when they’re exploring diagnoses or treatments outside of their specialism or comfort zone. But is this reality? I doubt it. In my experience, patients are much more forgiving than you may first think.”

The correspondent who raised this with me asks whether, in New South Wales, patients can record conversations with paramedics.   My correspondent says:

I am just following up on a question about patients recording paramedics without consent in NSW (my understanding is that the law differs from state to state). I would really appreciate hearing your opinion.

I understand that the Surveillance Devices Act 2007 (NSW) s 7 says that:-

(1)          A person must not knowingly install, use or cause to be used or maintain a listening device:

(a)          to overhear, record, monitor or listen to a private conversation to which the person is not a party, or

(b)          to record a private conversation to which the person is a party.

Maximum penalty: 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).

(2) …

(3)          Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if:

(a)          all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or

(b)          a principal party to the conversation consents to the listening device being so used and the recording of the conversation:

(i)            is reasonably necessary for the protection of the lawful interests of that principal party, or

(ii)           is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.

Section 7(1) is clear. But section 7(3) is a little unclear. Section 7(3)(a) says that section 1 (b) doesn’t apply if ALL principal parties consent  OR (3)(b) may apply, but (3)(b) refers to only ‘a’ principal party being able to record provided (i) OR (ii).   I am just wondering about the use of the word ‘consents’ in (3)(b) and how it fits with the reference to the singular party. Do you think that this means:-

  1. With reference to (3)(b)(i) that a patient can record a conversation with a paramedic without the paramedic’s consent in order to protect their lawful interests (eg right to consent or refuse consent for treatment/right to be informed/warned)? And
  2. With reference to (3)(b)(ii) that a party (being the patient) can record a conversation for their own purposes provided they don’t communicate or publish it elsewhere?

I found this case that has applied the section https://www.caselaw.nsw.gov.au/decision/54a63da33004de94513dbc9b

A listening device is defined as ‘any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear’ (s 4).

A private conversation (s 4) is:

… any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only:

(a) by themselves, or

(b) by themselves and by some other person who has the consent, express or implied, of all of those persons to do so,

but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else.

I have previously written on listening devices – see all the posts that appear here – https://emergencylaw.wordpress.com/?s=listening+device

The case that my correspondent refers to is Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133.  In that case Mr Toth was convicted of an offence contrary to s 7(1)(b) after he used a ‘concealed video recorder in the shape of a pen’ to record ‘the examination undertaken by the doctor and the conversation with her’.  He was convicted by the Magistrate and appeals to the District Court and the NSW Court of Appeal were dismissed.  I will return to that case in due course.

Discussion

I don’t think the answer is complex, one has to simply read the words of the Act.  It is an offence to using a device to record a private conversation (s 7(1)) unless the exceptions in 7(3) apply.  The principal parties to the conversation will be the patient and the paramedic.   A patient can record a conversation with a paramedic if:

  • The paramedic consents; or
  • It is ‘reasonably necessary for the protection of the lawful interests’ of the patient or
  • The recording ‘is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation’.

If a patient says they want to record the conversation why would a paramedic not consent? Paramedics ‘may worry about the possibility of litigation or being held to their word’ but they should have the confidence to back themselves.  If provide high quality professional care then the recording will confirm that.  If you fail to provide high quality professional care then the recording will confirm that too and save everyone a lot of unnecessary trauma having disputes about who said or did what.  If you believe you are a competent professional you would consent as you want to provide high quality care and want to know if you did not.

If you don’t consent what are you going to do about?  It would be remiss to refuse to treat the patient’s clinical needs unless they agreed to turn off the recording as that would be putting your interests ahead of the patient.

Let us assume for the sake of the argument, however, that the paramedic does not consent or that the recording is covert in which case the paramedic is not given the chance to consent.  In that case the recording is still not illegal if ‘It is reasonably necessary for the protection of the lawful interests of the patient’.   It is not obvious to me why that would be the case but it might be if for example the patient has expressly refused some treatment and wants to ensure, if they become unconscious, that their wishes are respected.  In any event, to answer the question, we don’t need to come up with an example where recording the interaction is ‘reasonably necessary for the protection of the lawful interests’ of the patient.  All we need to do is note that if that was the case, then the recording is not unlawful.

Finally the recording can be made provided the intention or purpose of the recording is for a reason other than ‘publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation’.  This is where a patient’s may want to record the conversation because they ‘are in distress, and they want to listen and to understand, even though they’re struggling. Ultimately, they want to be heard and understood. They want a two way conversation where their priorities count.’  They want to be able to use the recording later to recall what they were told as they know at their moment of distress they are going to have difficulty.  That too is not unlawful.

A follow up question was ‘can those recording be relied on by the patient in any action against the practitioner?’   The answer has to be ‘possibly’.  A court or tribunal that is looking at allegations of poor conduct wants to know the truth.   Evidence that helps establish the truth would be admissible.  If the patient attempts to use the recording in evidence it does not prove that at the time of the recording they had the purpose ‘of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation’.

Even if they did have that purpose, the fact that evidence was illegally obtained does not make it inadmissible.  The Evidence Act 1995 (NSW) s 138(1) says (emphasis added):

Evidence that was obtained:

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

In short it must not be used unless it should be used.  Section 138(2) sets out a list of factors a court has to consider when balancing the need to ensure evidence is not collected illegally but also to ensure that courts have evidence to establish the truth.  In the case of a recorded conversation between patient and paramedic issues to be considered would include the nature of any allegation, what other evidence is available, how probative the recording is etc.  Whether it could be used in any particular case would depend on the circumstances of that case.

Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133

I now turn to Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133.   As noted in that case Mr Toth was convicted after he used a ‘concealed video recorder in the shape of a pen’ to record ‘the examination undertaken by the doctor and the conversation with her’.   That case does not, however, really shed any light on the matter.  In that case Mr Toth’s argument was not that he was justified by s 7(3). Rather his argument was that the walls of the surgery was such that conversations in the examination room could be heard by people in the reception area and so this was not a ‘private conversation’ because the conversation occurred ‘circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else’ (Surveillance Devices Act 2007 (NSW) s 4, definition of ‘private conversation’).

In the Court of Appeal, Basten JA (with whom Barrett and Emmett JJA agreed) said (at [16]-[17]):

… The doctor gave evidence from which it was clear that she wished the conversation to be private. The applicant did not give evidence. There was therefore no evidence to contradict the conclusion that both persons desired the words to be listened to only by themselves.

There was, however, positive evidence from the doctor that she did not expect her consultation with the applicant to be overhead by others. That evidence was not determinative of the question raised by the proviso, which was whether the parties “ought reasonably” to have expected that the conversation might be overheard. However, given that the doctor worked at the surgery, her opinion, which was led without objection, supported the conclusion that the proviso did not apply. The application of the proviso was the issue on which the appeal was based…

Given the way the case was run, finding that the doctor expected the conversation to be private and that she did not expect it to be overheard was fatal to Mr Toth’s defence.   Neither Mr Toth nor the court addressed any part of s 7(3) so that case provides no guidance to the issues under discussion.

Reality TV shows

This post raises further issues about reality TV shows such as “Paramedics” and “Ambulance Australia”.  On these shows cameras were installed in ambulances that recorded both video and audio, that is they were ‘listening devices’.

Some people may have consented to their use but it cannot be the case that everyone did or more importantly that they were capable of consenting.  If they needed ambulance services and the ambulance was equipped with recording equipment they were in no position to give or refuse consent and that is particularly true the more serious their injuries and the more their injuries impacted on their ability to consent.

Further the clear purpose of making the recording was for ‘communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation’ that is the viewing audience.    This is true at the time of recording, whether the recording was ultimately used is irrelevant.

If that’s true the recording could only be justified if it was ‘reasonably necessary for the protection of the lawful interests of that principal party’, but the recording was not being made by a ‘principal party’ – it was being made by the television channel and/or the ambulance service.

It appears to me that the television channels and/or the ambulance services knowingly installed, used or caused to be used a listening device ‘to overhear, record, monitor or listen to a private conversation to which the person is not a party’ and that is an offence.

Conclusion

My correspondent asked with some slight modification:

  1. With reference to (3)(b)(i) can a patient record a conversation with a paramedic without the paramedic’s consent in order to protect their lawful interests (eg right to consent or refuse consent for treatment/right to be informed/warned)? And
  2. With reference to (3)(b)(ii) can a party (being the patient) record a conversation for their own purposes provided they don’t [intend to] communicate or publish it elsewhere?

My answer to both questions is ‘yes’.