To clarify this, they divided states into 2 groups in terms of how they govern recordings of private conversations: “single-party” jurisdictions require only 1 party, including the person making the recording, to consent to the recording, whereas “all-party” jurisdictions, namely California, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Oregon, Pennsylvania, and Washington, require that all participants in an encounter consent to a recording.
“If a clinician in a single-party jurisdiction is asked by a patient to allow a recording, the clinician may ask the patient not to proceed, but the patient has the right to record the clinical encounter,” the authors clarified, noting that the clinician can then choose to terminate the visit if they wish.
In a state with single-party rules, patients are free to share the unadulterated recording with a family member or caregiver as long as they do not do so on social media, and so long as the recording is not used to the detriment of the clinician or their reputation.
In cases where 1 party violates these rules and records illegally, the other party can seek damages, and individuals who disseminate illegal recordings can be prosecuted. Illegally made recordings are also inadmissible as evidence in court, Dr Elwyn and coauthors noted.
The current situation, with patients concerned about asking providers for permission to record and clinicians anxious about the presence of covertly made recordings, “hinder[s] a relationship of trust and open communication,” Dr Elwyn and coauthors wrote.
“Clinicians, patient advocacy groups, and policy makers should work together to develop guidelines and regulatory guidance on patient recording…[that] embrace the value of recording clinical encounters,” they urged.
Elwyn G, Barr JP, Castaldo M. Can patients make recordings of medical encounters? What does the law say? JAMA. 2017;318:513-514.