The receipt and storage of images of patients is currently a common source of queries, largely due to the increased use of remote consultations during the COVID-19 pandemic. Ayisha Hooper, Case Manager at Medical Protection, reviews the relevant guidance.
The medicolegal implications of obtaining and storing images of patients, including children, are increasingly coming under the spotlight for many GPs because of the now-commonplace use of remote consultations during the COVID-19 pandemic.
The key GMC guidance in such situations is Making and using visual and audio recordings of patients (2011). This guidance covers the patient consent required to make an image or recording, and then store it.
It is worth noting that in paragraphs 13 and 14, while the guidance is written in a way that is aimed at a clinician making an image or recording of the patient, in the current situation it would still apply in a remote consultation where the patient has made the image, and particularly if parents have done so at the request of the clinician. Where the patient is too young to provide consent, the decision would fall to those with parental responsibility.
The GMC’s guidance says:
Consent to make recordings as part of the patient’s care
13 You must get the patient’s consent to make a recording that forms part of the investigation or treatment of a condition, or contributes to the patient’s care, except in the circumstances described in paragraph 10 . You should explain to the patient why a recording would assist their care, what form the recording will take, and that it will be stored securely.
14 Wherever practicable, you should explain any possible secondary uses of the recording in an anonymous or coded form when seeking consent to make the recording. You should record the key elements of the discussion in the patient’s medical record.
Consent and images of children
Where a parent has sent a photo unsolicited, it might seem as though the parent has given implied consent. However, if this would not be an image taken in the course of a normal face-to-face consultation, or if the image is of an intimate area, you should confirm with the parent that they consent to you viewing and potentially storing the image, or even sharing the image (for example, if you required a second opinion).
Whether you ask for the photo or the parents proactively send it, you would need to consider if keeping the photo is in the best interest of the child as per the GMC’s 0–18 years: guidance for all doctors (2018). A local safeguarding lead may be a good source of further advice.
Whatever your decision, it would be advisable to record the consenting discussion that you have had with the parent in the clinical record. It would also be advisable to make a note of the clinical relevance and purpose of the images to justify their use and storage.
Storage and recording consultations
It would be advisable to approach your IT provider as they would be able to advise whether it would be possible to store any video consultations and photographs and if so, how. Medical Protection is unable to give advice on any IT systems, but it is worth considering the Information Commissioner’s Office guidance on security considerations: Guide to the GDPR.
In any remote consultation, it is important to take careful and detailed notes, as in a face-to-face consultation, ensuring that it is clear within the records that this is a remote consultation. You might also wish to discuss with the patient how and where the consultation would be stored at the start of the consultation, being mindful that a copy of this consultation could be requested by the patient.
You should ensure any storage of patient’s personal and sensitive data is stored and recorded in accordance with the GDPR.
Your Local Medical Committee (LMC)
It is important to be aware that guidance available to clinicians during the pandemic is constantly evolving and LMCs are particularly involved in collating ideas on best practice. We also recommend contacting your LMC for advice as they are likely to regularly produce and update guidance on issues such as remote examination techniques and record keeping.
If it is clinically appropriate to store an image of a patient, whether adult or child, then a practice is unlikely to be criticised. However, practices may want to consider whether their IT system would allow for the image to be flagged as particularly sensitive information, signalling extra caution needed when disclosing the medical record.
Before destroying any images, you would need to consider the GMC’s Making and using visual and audio recordings of patients. We also strongly recommend discussing the matter further with practice colleagues, in order to agree on a policy that creates a consistent approach – and a discussion with the LMC may also be beneficial here.
 Consent to make the recordings listed below will be implicit in the consent given to the investigation or treatment, and does not need to be obtained separately.
- Images of internal organs or structures
- Images of pathology slides
- Laparoscopic and endoscopic images
- Recordings of organ functions
- Ultrasound images