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Hot topic: Consent for audio or visual recordings

Consent for taking photographs and making recordings is vital, explains MPS medicolegal adviser Dr Pallavi Bradshaw

The smart phone revolution has fundamentally changed the way we interact in society and has created a reliance on technology that pervades even clinical practice. With the invention of medical apps, gone are the days of white coats laden with various clinical handbooks. It is unsurprising that mobile phones are often used to take photographs of interesting cases and recordings made of interesting patients. Whilst most of these photographs are taken to show to colleagues to aid diagnosis or to be used as potential case reports, the doctors taking the photographs may be inadvertently breaching GMC, employment and legal obligations, if the right consent has not been taken.

Documented consent is required for all images taken (save for internal investigations and pathology slides) and trusts will usually have specific consent forms that should be used or medical photography departments who can guide you through the process.

The GMC has produced supplementary guidance Making and using visual and audio recordings of patients (2011), it sets out the professional obligations of taking images or recordings of patients. Issues around confidentiality and consent are paramount and must not be overlooked even in the theatre setting with anaesthetised patients.
Any image whether it is anonymised or otherwise, forms part of the medical record, so this data must be stored and processed as per the Data Protection Act (1998)
Any image whether it is anonymised or otherwise, forms part of the medical record, so this data must be stored and processed as per the Data Protection Act (1998). It is therefore not acceptable to be carrying images of patients on one’s mobile phone or electronically sending them on. There is clearly a risk of the data being lost or stolen and the fact remains that most hospital doctors will not be registered as a Data Controller as would be required. Should the images become lost you would have a duty to notify your employer and the patient, which would lead to difficult questions being asked and likely disciplinary action. There may be times when a photo would aid diagnosis in emergency situations if the clinician is off site, but generally these images should be relayed via secure emails and immediately deleted after storing in the records. You should discuss such deletion with your employer’s IT department.

If there is a clinical need or a desire to take images for diagnosis or education purposes it is not appropriate to use personal cameras and mobile phones. Agreement by a patient to take an image does not obviate your obligations to your employer, or your duties of confidentiality. There are ultimately no circumstances, save for emergencies, when taking patient images on a mobile phone, whether consented or not, is justified, so should not be done.

NB. Doctors working in a GP setting or in private practice should seek further advice if they are concerned.