An unusual skin lesion that would previously have required a referral to a specialist can now be photographed in an instant using your mobile phone and sent to a colleague for an instantaneous second opinion. The photograph may then be used in your next teaching session for medical students, or for that case study you always intended to write.
Or can it? While technological advances have been of great benefit to patients and in the training of doctors, it is vital to remember your professional duties regarding consent and confidentiality, and that respect for patient autonomy is paramount.
The GMC has recently updated its guidance Making and Using Visual and Audio Recordings of Patients, which covers audio recordings, photographs and other visual images of patients, for example those made on a mobile phone or a webcam.
The guidance sets out key principles underlying the making or use of recordings of patients (see box, below).
Recordings made for clinical purposes
Specific consent is not required to make recordings such as X-rays and ultrasounds, laparoscopic images or other images of internal organs, and recordings of organ functions, such as ECGs, since patients' consent will be implicit in their consent to the investigation or treatment. If such images could be used in research, teaching or training, you should advise patients of this when seeking their consent to the procedure, and explain that they will only be used in an anonymised form.
Any other recordings made as part of the investigation or treatment of a patient require the patient's explicit consent, and you should explain why it will assist in their care, what form it will take and that it will be stored securely.
Recordings made for clinical purposes form part of the patient's medical record, and, as such, any publication or disclosure of identifiable images must be in line with the GMC's guidance Confidentiality (2009).
This means that the consent of the patient is usually required; however, anonymised recordings can be used without consent for research, teaching or training. The guidance warns that particular caution should be taken to ensure the anonymity of images which may be published in any media accessible to the public, such as journals and textbooks.
Recordings made for research or training
Patient consent must be obtained before making any recordings for teaching, training, the assessment of clinicians, research or other healthcare-related purposes.
It is good practice to obtain written consent, but if this is not practicable, the patient's consent should be recorded in their medical records.
In seeking consent you should explain the purpose of the recording and how it will be used, and how long it will be kept. Patients should also be advised that withholding consent will not affect the quality of care they receive, and that they may withdraw consent during or after the recording.
If consent has not been sought to make a recording, but an unexpected development occurs which would make a valuable educational tool, you should seek consent to making the recording where possible.
If it is not practicable to do so, for example if the patient is sedated, you may make the recording but must inform the patient when they regain capacity and seek their consent for its use. If they object, the recording should be erased or destroyed as soon as possible.
You must not:
Adults who lack capacity
If a patient lacks capacity to consent to a recording made as part of the investigation or treatment of their condition, you must get consent from a person who has legal authority to make decisions on their behalf.
If there is no-one with such authority, a recording may be made if it forms an integral part of care that is being provided in accordance with the Mental Capacity Act 2005.
The guidance describes the limited circumstances in which recordings of patients who lack capacity may be made for the purposes of teaching, training or research. Doctors should seek advice from their defence organisation if in any doubt.
Special consideration needs to be given to recordings of patients to which the public will have access. Written consent should be obtained before making recordings of patients for use in widely accessible media, such as television, radio or internet, and the agreement of your employing or contracting body should be sought. Doctors must be satisfied that consent has been obtained in line with the GMC guidance, and they should be particularly vigilant about patients who may be vulnerable.
Recordings made before a patient's death may be used in accordance with their consent. If the recordings will appear in the public domain, and the patient is identifiable, you should consider consulting the patient's family.
The use of visual and audio recordings of patients is an invaluable tool for communication and training purposes. Medico-legal pitfalls can be avoided by following GMC guidance and taking advice where appropriate.
- Dr Davies is a medico-legal adviser at the Medical Protection Society
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