Is it appropriate to perform ambient listening and create session notes for a patient?

Ambient Listening and Session Note Creation: Clinical Guidance

Yes, you can perform ambient listening and create session notes for patients, but this requires transparent informed consent, institutional policy compliance, and careful attention to privacy protections. The most recent evidence supports a flexible, multimodal consent approach that prioritizes patient autonomy while acknowledging the practical realities of clinical documentation 1.

Key Requirements for Implementation

Informed Consent Process

Consent should generally be given when patients request or are informed about ambient documentation, as there is no sound legal framework to refuse such requests unless there are real concerns about patient safety and care 2.

The optimal consent approach includes:

• Verbal patient-clinician conversation prior to each encounter as the primary method 1
• Written documentation that the patient has been informed and consented, included in the medical record 2
• Clear explanation of how data will be used, stored, and who has access 2, 1
• Disclosure of AI features, data storage, and corporate involvement when applicable, though this may reduce consent rates from 81.6% to 55.3% 1

Critical Privacy Considerations

Institutions must establish formal policies regarding ambient recording on their premises, with all staff and patients informed through notices, information leaflets, or consent forms 2.

Privacy protections must address:

• Informational privacy: How personal health information is collected, stored, used, and disclosed 2
• Decisional privacy: Patient autonomy in choosing whether to participate 2
• Reasonable expectation of privacy: Patients expect their interactions with clinicians to remain private 2
• Data protection regulations: While patients can waive their own confidentiality, recordings widely shared or posted online may trigger data protection requirements if they include identifiable persons without permission 2

Institutional Policy Framework

Healthcare organizations should:

• Draw up comprehensive guidance for overt and covert recordings by staff, patients, and relatives 2
• Provide transparency through notices of privacy practices in patient consent forms 2
• Ensure patients understand that sensor data cannot provide real-time warnings, and their care will not be affected by participation or withdrawal 2
• Establish clear accountability: 64.1% of patients hold physicians accountable for medical errors linked to ambient documentation, while 76.7% believe vendors should be responsible for data security breaches 1

Practical Implementation Algorithm

Step 1: Pre-Encounter Preparation

• Ensure institutional policy is in place and visible signage/notices are posted 2
• Prepare digital resources and educational materials about the technology 1

Step 2: Patient Engagement

• Initiate verbal discussion about ambient documentation before the clinical encounter 1
• Explain the purpose (reducing documentation burden, improving accuracy) 1
• Disclose AI involvement, data storage practices, and corporate partnerships 1
• Address patient questions about privacy, security, and data use 2, 1

Step 3: Consent Documentation

• Obtain written consent and place in medical record 2
• Both parties should retain copies of any recording when formal recording systems are used 2
• Provide clear opt-out options without penalty 1

Step 4: Ongoing Transparency

• Inform patients that their care team is not their research team if data is used for research 2
• Clarify that data annotation will not be done by the care team 2
• Ensure patients understand confidentiality obligations if recordings are shared 2

Important Caveats and Pitfalls

When to Decline Recording

The priority for care should always be the safety and quality of treatment 2. If intrusive recording may be overly distracting or impair your ability to provide safe care:

• Explain these concerns to the patient 2
• Consult senior clinical or managerial staff if time permits 2
• Document these discussions in the clinical records 2
• Concerns about recording would be very unlikely to justify withholding necessary medical care and treatment 2

Staff Privacy Rights

The legal situation regarding staff members who do not wish to be recorded by patients is unclear 2. If you object:

• Seek other colleagues to provide care instead 2
• If no willing colleague is found, document this in the notes 2
• Institutions should not make covert recordings of staff unless there are serious concerns over wrongdoing 2

Confidentiality of Other Patients

While patients can waive their own confidentiality, institutions have an obligation to protect the confidentiality of all patients 2. If a recording includes other patients in the background, additional protections may be needed 2.

State-Specific Regulations

State law regarding consent for audio recordings is likely applicable 2. Verify local requirements, as some jurisdictions require two-party consent for audio recording 3.

Liability and Accountability Considerations

Ambient intelligence applications increase clinicians' exposure to liability for clinical judgments 2. The proper balance of liability between clinicians and software vendors remains unclear 2.

Key accountability issues:

• Patients primarily hold physicians accountable for medical errors linked to ambient documentation 1
• Vendors are expected to be responsible for data security breaches 1
• Continuous monitoring could affect how clinicians view their responsibilities within the clinical relationship 2

Flexible Consent Model

A flexible, multimodal approach improves consent processes and supports broader acceptance 1. This includes:

• Digital touchpoints and educational resources 1
• Time to discuss risks and benefits 1
• Nonclinical staff support for consent processes 1
• Clear opt-out options 1
• Recognition that patient trust, detail in consent discussion, and intended tool use are associated with patient comfort and intent to consent 1