One-party or all-party: recording consent laws for AI scribes

We tell every clinic to ask every patient before Charted records a visit, in every state and on every plan. Part of the reason is courtesy. The other part is that recording laws differ from state to state, and a clinic that always asks everyone never has to work out which rule applies to a particular visit.

This post covers the two kinds of rules and a few of the statutes behind them, then what we recommend for in-person and video visits. It is general information, not legal advice. Have your own counsel review your consent workflow before you roll it out.

One-party consent

Federal wiretap law allows a person who takes part in a conversation to record it, and allows a recording when one of the parties has given prior consent, as long as the purpose isn't to commit a criminal or tortious act. The rule is in 18 U.S.C. § 2511(2)(d). On that basis alone, a clinician in the visit could record it without asking the patient.

Many states take the same approach. We don't rely on it. A patient who learns after the fact that a visit was recorded has good reason to trust the clinic less, whatever the statute allows.

All-party consent

Other states require the agreement of everyone in the conversation. In some, that rule applies only to phone calls or only to in-person conversations. The three below cover face-to-face conversations, which is what matters in an exam room.

California Penal Code § 632 applies to anyone who records a confidential communication without the consent of all parties, whether the parties are "in the presence of one another" or on the phone. A communication is confidential when a party would reasonably expect it to stay among the people taking part, which describes nearly every exam room conversation. A first offense can bring a fine of up to $2,500 per violation, up to a year in jail, or both. Under Penal Code § 637.2, anyone harmed by a violation can sue for $5,000 per violation or three times their actual damages, whichever is greater. Evidence obtained in violation of § 632 can't be used in court or other proceedings, except in a case over the violation itself.

Florida Statutes § 934.03 makes interception lawful when all parties have given prior consent. A violation can be a third-degree felony.

Washington's RCW 9.73.030 requires the consent of all persons engaged in a private conversation. It treats consent as obtained when one party announces to the others, in any reasonably effective manner, that the conversation is about to be recorded. If the conversation is recorded, the announcement has to be recorded as well.

Who counts as a party

In an all-party state, everyone who speaks is a party. At a pediatric visit, that includes the parent. It can also include an adult child helping an older patient, a medical interpreter on speakerphone or a resident in the room. Ask each of them, not only the patient.

If anyone says no, pause the recording. The visit goes on as usual, and the clinician documents it the way they did before Charted.

Video visits across state lines

A telehealth visit can put the clinician in one state and the patient in another. We recommend following the stricter of the two rules, which in practice means asking everyone, every time. Confirm where the patient is at the start of the visit, as you already do for licensing. Charted's virtual visit notes open with the visit type, the patient's stated location and the consent record.

Since version 3.6, the patient sees the consent prompt on their own screen during a video visit and accepts or declines it there.

What we recommend

• Ask before the recording starts, with the same short script every time.

• Once the recording is running, say one sentence that confirms it, such as "We're recording now, as we discussed." The confirmation lands in the transcript, so the announcement itself is recorded, as Washington requires. The transcript stays with the note after the audio is deleted, unless your organization has set transcripts to delete at sign-off.

• Ask anyone who joins partway through, before they speak.

• Note refusals in the chart as well as agreements.

• Mention recording at check-in and post a link to your patient information page in the waiting room, so the question in the exam room isn't the first time a patient hears about it.

Lena Marquez's three-sentence script in How to ask for consent to record in under 20 seconds covers the request itself.

Questions we get

Is a signed consent form at check-in enough?

It records that the patient agreed in advance. It doesn't cover a family member or interpreter who joins later, so the spoken check in the room still matters. Ask your counsel whether your state expects anything more.

Does deleting the audio change the consent question?

No. Consent is about making the recording in the first place. Deleting audio at sign-off limits what we hold afterward, but the recording still existed during the visit.