Getting consent right is just the starting point for safe AI scribe use.
The use of AI scribes has surged, but the technology is still evolving and brings legal obligations that practitioners must understand before, during and after implementation.
Dr Owen Bradfield, MIPS Chief Medical Officer and both a medical practitioner and lawyer, said MIPS has been closely monitoring AI scribe adoption since these tools first appeared on the Australian market nearly two years ago.
He said AI scribes can genuinely transform clinical practice by reducing the time spent on documentation, but practitioners need to understand the medico-legal issues before adopting these tools.
The most recent survey data suggests nearly 40% of general practitioners are using AI scribes on a semi-regular basis.
Dr Bradfield said the most immediate legal requirement relates to consent and listening devices legislation. Across Australian states and territories, it’s a criminal offence to either record a conversation without the consent of a party to that conversation, or use or publish information derived from a recording of a conversation without the consent of a party to that conversation. Although there is not yet any case law, it is likely that courts will consider an AI scribe to be a listening device, and using it without patient consent could breach state and territory listening devices laws.
Similar Commonwealth laws that prohibit the interception of telecommunications may also apply to telehealth consultations meaning that consent must also be obtained when using an AI scribe in a telehealth context.
There is no legal requirement that patient consent to AI use be in writing,. Verbal consent is sufficient, provided the conversation is documented in the patient’s records. Patients must be aware that the consultation will be recorded and they must be given an opportunity to opt-out. Under privacy laws, patients should also be made aware of data retention practices and any overseas data transfers, and that data will be captured and processed by a third party.
He emphasised that consent must be obtained before every consultation where an AI scribe is used. Each consultation where a listening device is used without consent could be a separate criminal offence. However, subsequent consent conversations can be shorter, simply reminding patients that the AI scribe is still in use and checking they’re comfortable.
Beyond consent, practitioners must understand how their chosen AI scribe handles data, including where the vendor is based, where data is stored, what data is retained and for how long, and whether information is de-identified.
Dr Bradfield said it’s generally safer to use an Australian-based vendor that stores data in Australia.
Perhaps the most critical professional requirement is checking every AI-generated output for accuracy before finalising the record. He said there must be human input into every AI output, and practitioners must exercise clinical discretion and judgement when reviewing what’s been generated.
AI scribes will unlikely ever be 100% accurate. AI scribes may confuse positive and negative findings in the medical history, fabricate examination findings that never occurred, and generate incorrect practitioner details for referral letters.
The Medical Board’s code of conduct requires that medical records be accurate, up-to-date and contain sufficient information.
While no published cases yet involve health practitioners being criticised for AI use, recent cases from other professions provide clear warnings. In 2024 and 2025, two Australian lawyers were referred to legal complaints commissions after using AI tools to generate court documents containing fictitious cases. In both instances, the lawyers hadn’t checked the AI output carefully enough.
A September 2024 investigation by Victoria’s Office of the Victorian Information Commissioner examined a case where a child protection worker used ChatGPT to create a court report without checking its accuracy or considering that sensitive personal information had been disclosed to an open-source AI tool overseas company.
The Australian Health Practitioner Regulation Agency (Ahpra) recently released guidance emphasising that there must be human input into every AI output. The Royal Australian College of General Practitioners has published a fact sheet for GPs using AI scribes. Most recently, the Chief Justice of the Supreme Court of NSW issued a practice note preventing expert witnesses from using AI tools in preparing expert reports without court permission.
He said practitioners should proceed with informed caution. The technology can fundamentally transform clinical practice for the better, but the key is being as informed as possible before implementation. He emphasised the importance of understanding consent requirements, knowing how chosen vendors handle data, always checking accuracy, and staying current with professional guidelines.
Practices considering AI scribes should develop procedures and protocols around their use, update their privacy policies, and ensure all staff receive appropriate training.
MIPS members using AI scribes are covered under their indemnity policy, subject to the full terms and conditions. However, if presented with a contract that includes indemnity clauses attempting to shift liability from the vendor to the practitioner, it’s important to obtain legal advice before signing.
Confidence through support
As AI scribe adoption accelerates across Australian healthcare, staying informed and implementing rigorous safeguards isn’t just good practice. It’s essential protection.
With MIPS supporting you, you can embrace new technologies knowing that experienced advisers who understand both the clinical and legal complexities are available whenever you need them. That’s the confidence that comes from having a trusted partner as healthcare practice continues to evolve.
Interested in joining MIPS?
Being a MIPS member gives you the security and confidence you need to protect your purpose as a healthcare practitioner. Visit www.mips.com.au for a quote or to learn more about our member benefits. Call 1800 061 113 or email info@mips.com.au to talk with our member services team.
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