Food for thought – should mental health clients be able to record discussions with lawyers?

In September this year, I was fortunate enough to attend a medico-legal conference in Greece and enjoyed a week-long programme of papers presented on different issues both legal and medical.

One issue that was raised in a paper by Dr John Mailos, a medical practitioner from Australia, was the “Audio Recording of Medical Consultations: Friend or Foe?”

This was a very interesting seminar paper because it looked at the issue of trust between the doctor and the patient and how medical information was conveyed.

Dr Mailos often had to convey complex medical information to a patient and sometimes distressing news to a patient whose presenting condition may not be able to be assisted by modern medicine.

Often such news would be distressing to a patient.

Dr Mailos was of the view that it was quite acceptable for his patients to be able to record the consultation so that, in their own time, they can listen to the medical data received.

This is an interesting concept for lawyers, and is a topic that ADLS’s Mental Health and Disability Committee considered at our last meeting.

There are a number of issues raised when lawyers are giving legal advice to vulnerable clients.

Lawyers who practise in the area of mental health see clients who may be suffering from delusional thoughts and can be in various stages of unwellness.

Some do have access to cellphones and, at the Committee meeting, we discussed what would be our response to either a request or an observation that a client was recording the conversation and the legal advice given.

The writer herself practises in both mental health and refugee law and clearly indicates to her clients at the start of any meeting that cellphones are to be switched off and we are always happy to put our legal advice in writing later to the client.

Another colleague actually takes the cellphone from the clients to ensure that they are not switched on and the advice being recorded.

Yet is it now, with the advance of modern technology, the right of a client to be able to record (for listening to later) the advice given at the time by counsel?

One of the difficulties, of course, is that we as lawyers have no control over how or when the recording can be used.

Also, we have no control over whether that recording has been tampered with, so what may have been said originally to the client is not then what is possibly replayed to a third party or indeed the client themselves.

The relationship is between the lawyer and the client – and not a third party. It was of concern the possibility that information given to Client A can be replayed and provided to a non-client or even the client elsewhere.

It was of concern that, as counsel, we simply have no control over the information that has been recorded and it can be relayed to others or altered and left lying around for an unknown third party to read.

It was the view of the Committee that, when we are acting for clients who are fragile and vulnerable, we would not want our legal consultation and advice given to be recorded in this way.

The writer follows up her legal advice with a letter to the client setting out the advice given and any plan of action that might be pursued, and this was seen to be perhaps a more sensible approach.

There are real privacy issues that arise and possibly the intellectual property as well for the lawyer in respect of the advice.

It would be very interesting to know what is the practice of other lawyers concerning this issue.

Any comments or feedback for the Mental Health & Disability Committee on the issues raised in this article can be sent to Ben Thomson at ben.thomson@adls.org.nz.

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