Physicians are being advised by their insurer that patients could record them using smartphones — with or without permission.

The Canadian Medical Protective Association, which among other legal services, protects doctors against malpractice, recommends physicians consider setting recording policies for their clinics.

Dr. Douglas Bell, an executive at the CMPA, said some doctors aren't sure what to say when patients want to record either audio or video of them.

"We're starting to receive more and more calls about recordings by patients," he said.

Under Canadian law, consent isn't required to record another person. But it gets complicated if that material is posted online. For example, YouTube will consider removing a video if a person feels it violates their privacy. But only if the individual in the video is, what the company calls "uniquely identifiable," which may be a matter of opinion.

Also, physicians are obligated to protect the privacy of all their patients, so recording in a waiting room where there are other patients is a problem.

Patient recordings may be helpful

Bell acknowledged most doctors would feel "uncomfortable" being taped by their patients, but suggested it shouldn't be dismissed outright.

"If you have a patient coming in and it's a significant diagnosis, say cancer, basically they're not really hearing anything you say after the 'cancer' word. So if they actually have a recording of your advice, that's actually helpful to the patient," he said.

With the continued demand for smartphone health apps that let us do everything from store prescription info, keep our medical charts, to consult an actual physician, it's no surprise some patients want a smartphone record of a visit with their doctor.

The CMPA suggests if a doctor agrees to be recorded by a patient, that they get a copy of the audio or video for the patient file.

Bell said the liability risk for doctors in Canada is "small," unless they're providing inappropriate advice.

But not all patients bother to ask.

Patient recordings used in U.S. lawsuits

Dr. Odile Kowalski, a Laval family physician and obstetrician, does not permit recordings in her clinic. But she says that hasn't stopped at least one of her patients from doing it surreptitiously. In the U.S., patients who secretly recorded medical staff making disparaging remarks while undergoing surgical procedures have successfully used the audio as evidence in lawsuits.

Many doctors say they're not happy at the prospect of being taped.

Dr. Odile Kowalski said she's aware of being recorded surreptitiously at least once.

"I happened to learn about it later from a spouse, so that was not fun."

The Laval, Que., family physician and obstetrician said she's never been asked by a patient to be recorded, and would not permit it. Kowalski said that's because she ensures her patients already have the important information they need before they leave her office.

"We put it down in writing — either the diagnosis or the treatment."

Dr. Vik Bansal, who usually treats elderly patients at Sunnybrook Hospital in Toronto, said he was bothered when he suspected he'd been recorded without his consent.

Recording suggests lack of trust

"It suggests there's a gap in trust. So you have an environment that's a little bit charged. You're not sure if there's a litigious element to it and that kind of sets a negative tone."

While acknowledging recordings might be useful for patients, Bansal said he'd worry about where that audio or video file could end up. "It can go on a Twitter feed, it can go on YouTube. I have no idea."

Bansal said providing patients with all the information available about their care electronically may preempt the demand for an actual recording of a doctor's visit.

Sunnybrook is among a growing number of Canadian hospitals and clinics that share personal health data and test results in real time with their patients through secure websites or phone apps.