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Remote Recording Legalities with Andrew Latham

Dane catches up with Andrew Latham, a lawyer at Capsticks who specialises in public law in the healthcare context to discuss data protection, recording consultations and legal challenges.

Dane catches up with Andrew Latham, a lawyer at Capsticks, to discuss data protection, recording consultations and the challenges with video consultation from a legal perspective.

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27 mins

Dane: Hi there, Dane here from Arc Health. Welcome to the Remote Consultation Masterclass. This is a podcast where we catch up with leading health care professionals to discuss tips and tricks for carrying out remote consultations. As well as bringing you key nuggets of information for your CPD. Now you can listen to us on Apple Podcasts, Youtube or Spotify or wherever you get your podcasts from.

Dane: So as a GP, our work includes a lot of remote consultation these days, and that has many challenges for us and particularly many worries. And this is the same when I talk to many of my colleagues, particularly around the medical-legal aspects of video consultation, which is new to many of us. So to explore this in more detail, I'm joined by Andrew Latham, a lawyer at Capsticks.  

Andrew: Hi Dane. 

Dane: Hi Andrew. So before we get started. Well, firstly, thanks for joining us. Before we get started on the more medical-legal aspects, I'd hoped you'd tell us a little bit more about your career today and the work that you do.  

Andrew: Sure. So I work at Capsticks, which is a law firm, and we're based in London and Leeds and Birmingham and other places around the country. And my work has, for the last decade or so been in clinical advisory. So I work on mental health, mental capacity, data protection, health care regulatory issues and helping people to make good decisions in their clinical life. From a legal perspective. 

Dane: Sounds good. So you're the right person for the questions that we have for you, which is really trying to explore this in more detail. So I guess doctors are generally worried about being sued and there are lots of challenges that come with video consultation. But I guess what are the extra challenges around video consultation for me in your opinion?  

Andrew: I think this is a really interesting time because this is obviously a new technology which has been adopted really, really quickly. Or at least it's become a lot more widespread, a lot more quickly. And there's no kind of specific legal regime for telemedicine or video consultations, as it's drawn from all of the other legal and professional regulatory obligations that you're under. And a lot of the law that touches on this issue is quite generic and or at least agnostic to the circumstances of video consultation as compared to if you're seeing someone face to face. So your normal good medical practise obligations from the GMC continue to apply regardless whether you're seeing someone face to face or if you're seeing someone by video consultation or by phone. The same issues apply. That being said, this is a technology which is going to be new for a lot of patients and potentially for lots of clinicians as well. And so there is a bit of a kind of known unknown about these issues. And I think there are certainly some areas where it's worth thinking about some of these issues and a bit more detail. So recordings, documentation, governance, some of the technical issues that are associated with video consultation and also looking at some of the sources of regulatory guidance which do touch on these issues in the context of video consultations.  

Andrew: So the GMC and CQC have put out some specific guidance on video consultation or remote consultation, which apply some of those existing rules to this more widespread new technology.

Dane: And there's quite a few things you've mentioned here, a range of areas. So I guess let's explore each of them in turn, really. And I guess the first question there, which piqued my interest is, well, should we be making recordings?  

Andrew:  I'm going to do an annoying lawyer thing, which is not give you a yes or no answer to that. It's ultimately going to be a policy decision for you as clinicians. That's going to be informed by what you think is a) in the patient's best interest and b), in your interest in terms of the kind of governance and recordkeeping that you make. 

Andrew: So you might prefer to have a face-to-face consultation. But just to make a note of your consultation afterwards. I think if you are making a recording, certainly what you should do is record the fact that you are making that recording. You need to tell the patients about the fact that you're making a recording. And I think you should think about whether or not - if you are making a recording - is that going to change the dynamic of the consultation? For better or for worse or in a different way? And I think a further thing to think about is what you are going to do if the patient says that they do not want a recording to be made if you plan to make one. And ultimately, they could leave the consultation if that's the route that you're determined to go down. Certainly, I think if you plan to record, the patient says that they don't want to be recorded and you decide not to record, then I think you should make a record of the fact that you have stopped the recording at the patient's request.  

Dane: And so you've taken into account those factors, you've decided that actually as a practice you are going to record, you've gained the consents necessary. How long should these recordings be kept for? 

Andrew: There's no specific retention period for video consultations. I would recommend having a look at the NHS Records Management Code of practice. Certainly if you're doing NHS work, that contains some standard retention period for lots of records and the typical retention periods, generally are 8 years for adult records and until the 25th birthday for children or young people. But there are different variations on that for different disciplines and different care settings. So GP records retention periods, it’s recommended 10 years. You have to factor that against the fact that making video recordings is going to be data-heavy. And therefore, if you're planning to store data for a long period of time, then that might be a) take up quite a lot of storage space. But also, what formats are you making that recording in? If you're keeping something for a long period, but you've only got a licence for the software that you're using to make that recording for a certain period, and they're using proprietary software to store the recording, is the recording going to be any good in five, 10 years time when you move to a different provider of your software? And although you've kept the recording, you don't have the facility to look back to it. 

Dane: Yeah, okay. So there are quite a few things to consider there really, isn't there? And I guess there's the other way of looking at this, which is let's say your practice doesn't want to make a recording but the patient turns round to you and says, I want to make a recording of this consultation, kind of where do we stand in regards to that?

Andrew: I think it's very hard in practice to stop someone making a recording if you don't want them to make it. Someone could just have their iPhone on in the background and they could be recording at least the audio without you even knowing about what's going on.  

There has been a legal case relatively recently which touched on these issues and the suggestion that was made was that making those recordings wasn't lawful. But the court concluded that actually, if you're making that recording and all you're doing is kind of looking back at it or using it for your own purposes as a patient, that's fine. That's a legitimate thing to do. And so I think bearing in mind that it's going to be difficult to try to stop people, try to be facilitative of the recording that they want to make. And I think it's also worth bearing in mind, thinking about why the patient might want to make that recording in the first place. So, for instance, you might be having a consultation about something which is technically complicated. You might be having a consultation in which something which could be repercussive for the patient is being discussed. Or you might be faced with a patient who has done, for instance, a memory impairment. And actually, it's really helpful for them to have the ability to listen back or look over the recording afterwards for their own benefit. So I think if they're making the recording for their own personal use, that's their decision to make. One comes across, unfortunately, situations where patients might make recordings for, or put those recordings to use for slightly less legitimate purposes. So you might come across situations where patients are posting things online that they shouldn't be or would be advised against doing. And I think if you're in that situation, I'd suggest talking to your practice manager, talking to your MDO or talking to 2 or more senior colleagues for some further advice or indeed talking to your lawyers if you're getting into that kind of territory.  

Dane: Yeah, and I guess that that's the fear, isn't it? But like you said, there are some reasonable things for us to consider. And so let's talk about tech because that's obviously the other thing that comes up and obviously not everything can be done by video or done well by video and what are the kind of key things we need to consider here?  

Andrew: So I think that there's two ends to this question. And the first one is to do with the technology that you're putting in place. So if you're a clinician who's involved in decision-making about whether or not to use a particular piece of software for a video consultation or putting in place the governance arrangements in your practice or department, that's moving towards using that consultation. So that's the technical angle. And then there's the second point, which is the kind of clinical governance and how it's being used in the case of a specific patient. And I think both of those issues are worth thinking about.

Dane: Well, OK, well, let's start with one of them, which is so how do you choose the right platform and what should we consider? 

Andrew: And again, it's a lawyer answering a question with a question. Why are you choosing a particular piece of software over anyone else? And there might be a whole range of reasons that you're using a particular supplier, both in terms of the functionality of the software, the security that it has in place, the price of that software.  

Andrew: But I think it's worth doing some due diligence on the supplier that you're using. And from a data protection perspective, things that are worth thinking about are where the data is going in the course of that consultation and where it's stored, in particular, whether or not it's being stored overseas. If you are using a commercially available video platform, then I think it's worth also thinking about what the provider says it's doing with the data that is being inputted into the system. So are they making any secondary usage of the data that's being applied? Are they tracking users across the Internet, which has been a story in the news about some of the privacy policies that are in place with certain widely commercially used video software services? Over the last few months, I think also worth thinking about again, is touching on a point that we talked about earlier on. What happens if you want to change platform at the end of the term? Where does the data go? Do you have the ability to download the data onto your own systems in a non-proprietary format? That means that it's easy for you to change supplier if that's what you wish to do. And I think that that's worth bearing in mind. Early on during the coronavirus pandemic, there was, I thought, quite helpful guidance from NHS X, which is the technology bit of the NHS on the range of commercial off-the-shelf tools that are available. And I think it's worth having a look at that. And there are certainly some suppliers which are preferred by the NHS as compared to others. So it is worth delving into that. And then following on from that. I think it's worth it then thinking about the kind of information and clinical governance. So thinking about what your policy is around how the system is to be used. And also worth draughting a privacy notice for patients as well so that they can understand where the data that's going into the system may end up and how it may be used in the course of their care and for anything else that it might be being useful.

Dane: So again, some really key points around the information we need to pick up before selecting a provider as well. And the test that's being used. So I think sometimes we can assume it's all okay. And actually, we need to have a look at that kind of finer detail. I guess, as part of that, the other thing that we worry about and it, you know, happens to our computer systems. I recall a couple of surgeries now where the computer system has gone down and they've ended up on manual paper. But now we're becoming more reliant on even more complex technology than just your computer working. And ultimately, what happens if the computer technology is not up to task? What the things you need to consider or make sure we have in place.

Andrew: There's a phrase around the time to decide how you're going to handle a crisis isn't during the course of the crisis itself. And so I think it's worth having some training prior to the use of the system so that you understand what the processes that are going to be taken if things go down. And probably also worth conveying that to the patient themselves so that they're not frustrated if the consultation goes off. I think it's definitely worth making a note of the fact that the technology stopped working. If you're providing information to the patients, then being clear about what that information was and the fact that you've re-provided it once the technology started working again. So really important, I think, if you're consenting to the patient or if you're revealing information to them, which is going to be important to them. And as I say, I think it's just certainly worthwhile having a fallback plan in place ahead of time. Unfortunate accidents do happen and you know, the expression is don't work with children, animals or technology. So I think it is certainly worth planning ahead on that front. And as I say, keeping good records if there are technical problems during the course, the consultation. 

Dane: So I think there's two things you picked out there, which- one- was there kind of having a plan B, but having it well-prepared and in advance, which for us in our clinic, for example, if our router goes down, our Plan B is that we have a 4G kind of device that's provided by the commercial provider. And that's a fallback potentially. And I guess, you know, having those fallbacks is important, but obviously what you're going to do if all of that doesn't work. But I think the second point you made was interesting and which we don't do, which I think is probably more important, which is that when we meet the patient to actually be very clear, if this falls down, how are we going to contact you if the Wi-Fi goes down or it doesn't work? So, you know, definitely, something we could get across to them and maybe something- actually I'm just more thinking out loud, something we should be getting our receptionist to do and have ready in place. OK. So the other question that always comes up, I think, with people I chat to about this kind of thing is, what consents, what forms, what kind of legal things do we need to have in place to allow video consultations to happen? Is there anything extra we need to have? 

Andrew: So I would recommend incorporating into your practice’s privacy notice, which is probably on your website or in a patient leaflet, what would be it is a privacy notice. I would recommend that it touches on the use of video consultation. And I think probably actually at this point that we've just been talking about, around educating patients about the new technology, because I think the clinicians that are involved will very quickly become skilled in the use of the technology, because you'll be using it over the course of 20, 30 consultations during the course of a day. But each patient might only have one of those consultations. So something which you've done 30 times and become an expert in is going to be still quite novel for some of the patients. And maybe if some of them are less familiar with technology then just making sure that it's really clear for them about how they can use the system, how it works. That probably, having a video consultation with your doctor on the bus is not the best place to be doing it and trying to have a consultation in a quiet and calm environment might be a good thing to do and maybe just putting that in some guidance as well so that it's really clear the patients, how they get the best experience out of the consultation, just as you do. 

Dane: Yeah, OK. So privacy statements being a key one and then some more proprietary information as well. So I guess moving on. In terms of guidance, there's lots of different conflicting messages coming out to clinicians about how they should be behaving or working in COVID. And definitely during this time, there's a lot of us doing consultations that end up being remote in some way, whether it's video or telephone, when actually this is potentially something that pre-COVID, we'd have definitely seen face to face. And a lot of us are taking what we feel are still calculated risks, but still risks nonetheless. And there's a lot of discussion of, oh, well, we're protected because it's the COVID pandemic. And just pop that down on your notes. Now, what are your thoughts on this? Does it offer us any protection in these situations? 

Andrew: There's no special legal dispensation for the fact that we're in a pandemic. I know that there was some suggestion that there maybe should be effectively a legal waiver that's put in place through statute for clinical decisions that are made during the course of the pandemic. I think the thing that is worth bearing in mind is you're always going to be judged against the standard of a reasonable body of professional opinion and questions of logic as well. And so whilst there are no special legal rules that apply, if you are making sensible decisions with the patient's best interests at heart, even if those are informed by some challenging practical circumstances, then I think he should hopefully be okay in that respect. And obviously, I think it's worth also bearing in mind that some regulators have slightly changed their approaches during the pandemic period. But as I say, the underlying rules that they are working to are broadly the same as they were before and that the rules for video consultation are broadly the same as are the same as the rules that would also be in place for a standard face to face consultation with traditional face to face consultation.  

Dane: And that's important. I think there is this kind of a little bit of a lull of a false sense of security that, you know, it's a pandemic and there's a little bit more room. And I think maybe it's a constant reminder to ourselves, you know, is this what we would do and how have we mitigate any risk? And is this reasonable? So definitely something to keep in the back of our mind. OK. Well, we've discussed quite a few points and I think some really interesting things to take away there. And I'm going to hopefully throw this back to you to help me out with the summary, really, and say kind of what -what are your kind of top tips for doctors to really protect themselves and their patients during this kind of new time of video consultations? 

Andrew: Sure. Well, I think the starting point is - make sure that you understand the technology yourself. And I don't mean that in terms of, you know, being able to kind of programme software or anything like that. But make sure that you've had a play with the video consultation facilities that you're using, make sure that you understand how it works, what its constraints are, and that it's not going to be a distraction from your perspective during the course of your consultation with a patient and allied to that, make sure that you have a fallback plan if things go wrong. And tied to that, I think if it's new for you, it certainly will be new for patients as well. So bear in mind that it's going to be a new experience for them and try to be accommodating to their needs and make sure that they're not getting distracted by the novelty. And so that's almost like a kind of consent point, I suppose. And the third issue is, it's worth making a note if there are problems that do arise from what you've done to resolve them. And then I think two points that are sort of tied to one another, which are that it is important to consider the appropriateness of the video consultation facility to the task in hand and the patient's condition. And I think where the GMC's guidance is really helpful is it lists out a series of circumstances where using video or remote consultation may be more appropriate and circumstances where using a more traditional approach may be a better alternative. And so where a consultation is straightforward, where you've got access to the patient's records, where it's not necessary to conduct a hands-on examination of the patient or to get a really good high resolution facility or view of whatever it is that's going on - natural eyesight as compared to looking at something over someone's iPhone camera. The circumstances where video consultation might be more appropriate and similarly, with prescribing also being a factor, that's worth thinking about there. Where circumstances may be less appropriate for video consultation. What you're faced with is a patient with complex clinical needs, that you are unfamiliar with the patient or don't have access to their notes. You, as I say, need to do something which is hands-on. And then also, if you're prescribing certainly cosmetic products, then that cannot be done remotely. That's got to be done in person. So I think it is really. And this is my 5th and final point, there is guidance out there. I think it is worth having a look at that. Particularly the GMC guidance. As I say, CQC has a little note out as well. But I think certainly if you have a look at the GMC's guidance, take account of that, then you won't go far wrong. 

Dane: Cool, so kind of looking back at everything we've talked about, so hopefully this is more kind of just taken on that summary approach is that-  so we've got the tech to understand and make sure that you're happy with, that you've picked the right tech, the right kind of things about where that data is going, how it's used, is it secure? We've got the preparation for the patient to do in terms what materials we might need to send them. We might need to think about a privacy statement as well to go with that. We might need a clear plan B if the tech goes wrong. So how are we going to manage that done in advance? Might need to consider whether this consultation is appropriate for the patient. And I think your kind of term around, you know, is this reasonable with the average kind of your peer group? And then ultimately that there's some good GMC guidance for the guys to have a look at?  

Dane: Yep, absolutely.

Dane: Perfect. Well, look, Andrew, really useful. And if no one else has learnt a lot, I've definitely found it really useful. So thanks very much for your time.

Andrew: Thanks for having me on. 

Dane: And I hope the rest of you that have been listening and have found it informative and useful. So thanks for listening to our video consultations masterclass podcast. And we hope to see you on the next one. 

Andrew: Bye  

Dane: As always, do keep in touch with us for future episodes by clicking the subscribe button on Apple Podcasts, Youtube or Spotify. See you on the next one. 

Introduction to Andrew Latham (00:32)

Challenges around video consultation from a legal perspective (01:27)

Should we be making recordings? (03:21)

How long should recordings be kept for? (04:40)

What happens when a patient wants to make a recording? (06:10)

What to consider when choosing the right software? (09:23)

What happens if your computer technology is not up to the task? (12:21)

What do we need to have in place legally to have video consultations? (14:44)

Does the COVID pandemic offer any legal protection when taking calculated risks (16:57)

Top tips for doctors to protect themselves during video consultations (19:02)

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