Covert recording risks for dentists

DENTISTS are warned that the law offers little or no protection from patients covertly recording consultations.

Patients are within their rights to record consultations and could use the information obtained to challenge their dentist’s actions.

The increasing use of smart phones makes it easier for patients wishing to secretly record a dental appointment and MDDUS advises dentists to keep clear, comprehensive and accurate records of consultations so they can justify their actions in court if necessary.

"A dentist might think that a patient would require their permission to record a consultation and that any recording made covertly was illegal," says MDDUS dental adviser Rachael Bell.

"However, this is not the case. When a patient seeks a consultation with a dentist, the information being processed is almost exclusively relating to the patient. Under the Data Protection Act, that data is therefore personal to the patient. By recording it, that patient is merely viewed as processing their own data."

It is likely that any recording would be covered by section 36 of the Data Protection Act which states that: "Personal data processed by an individual only for the purposes of that individual’s personal, family or household affairs (including recreational purposes) are exempt from the data protection principles."

"In essence, the patient can do what they wish with it," adds Bell. "Even if obtained covertly, courts may view the recording, if relevant to the case, as admissible. Dentists are warned that the accuracy of their records could be challenged if they do not match the recording of any consultation.

"Any covert recording would seem inherently intrusive and a breach of trust in a patient-dentist relationship. You would expect sympathy for a dentist whose privacy had been invaded. However, the law views the matter differently."

Privacy law under Article 8 of the European Convention of Human Rights is only enforceable against public bodies and therefore also offers no protection to the dentist. So what about turning the tables and recording patient consultations? Whilst the GDC has offered no specific guidance on the subject, the GMC’s Making and using visual and audio recordings of patients is clear that consent must be obtained for any recording of a patient's consultation.

Says Bell: "The only caveat to this is where covert recoding is deemed necessary for child protection issues. In this case, it would be advisable to seek advice from MDDUS to ensure law enforcement prior to any recording being made.

“Any audio or visual recording of a patient’s consultation would be deemed to be part of the patient’s record and so needs to be treated with the same level of confidentiality as a written record. The record would also be covered by the same rules on retention and secure storage as a written or computerised record.

“It is likely that the GDC would reflect the GMC’s view on this matter and therefore dentists would be cautioned against covertly recording patients. Instead, we would all do well to foster open and honest discussions with our patients in order to avoid them feeling it necessary to go 'undercover'."