Making and using audio and visual recordings of patients can benefit medical training, research and treatment. However, it poses risks for doctors regarding consent and confidentiality.
The GMC’s latest guidance Making and Using Visual and Audio Recordings of Patients applies to originals and copies of all photographs, visual and audio recordings of patients made and used in any circumstances, within or outside the UK, where doctors are working in a professional capacity – this does not include pathology slides containing human tissue.
Consent is required to make a recording that forms part of the investigation or treatment (except in those conditions discussed below).
When making recordings you must:
- Get the patient’s consent for the recording
- Explain the purpose of the recording and how it will be used, and where possible, whether you plan to use it for any secondary purposes, such as teaching
- Note the main points of the discussion in the medical record
- Explain how long it will be kept and how it will be stored
- Stop recording if a patient asks you to do so.
Consent is not required to use the following in anonymised form:
- Images of internal organs or structures
- Images of pathology slides
- Laparoscopic and endoscopic images
- Recordings of organ functions
- Ultrasound images and X-rays.
Wherever practicable, explain that the recording could be used in an anonymised form for secondary purposes.
Recordings made as part of the patient’s care form part of the medical record, and should be treated in the same way as written material in terms of security and decisions about disclosure.
- You will usually need the patient’s consent before disclosing recordings where the patient can be identified. However, you may disclose anonymised or coded recordings for use in research, teaching or training, without consent.
- Disclosures may be made where they are required by law or in the public interest.
Adult patients who lack capacity
- If a person lacks capacity, you must get consent to make the recording from someone who has legal authority to make the decision on the patient’s behalf.
- If no individual is present, the recording may still be made where it forms an integral part of the treatment, in accordance with relevant legislation.
- If a recording has already been made, you should anonymise or code it where practicable.
- If it cannot be anonymised, consent should be sought from anyone who has legal power to make decisions on behalf of the patient. If there is no one appointed, the law permits you to decide whether the recording can be used, if it is in the public interest.
Children and young people
Children and young people under 16 who have the capacity and understanding to give consent for a recording may do so, but you should encourage them to involve their parents in the decision making.
If a child or young person lacks the capacity to consent to a planned or unplanned recording being made, a person with parental responsibility may consent on their behalf.
Research and teaching
You must get the patient’s consent, ideally written, before making recordings for teaching, training or research that are not part of a patient’s care. If the recording was made as part of care with the patient’s consent, you may use it for research, teaching or training, providing it is made anonymous (remember that wherever possible, you would have discussed this when obtaining the original consent). Be careful about anonymity when publishing recordings in journals and learning materials.
Recordings made before 1997 may still be used for teaching, as long as they are anonymous, or if the patient can be identified, you have a record that consent was obtained.
Recordings used in the media
You must get the patient’s consent, which should usually be in writing, to make a recording that will be used in widely accessible public media, whether or not you consider the patient will be identifiable from the recording. If consent was not obtained at the time of the recording, you must get consent if the patient is or may be identifiable.
- Before making a recording, you must get agreement from your employing or contracting body, and from the organisation in which the patients are being treated if this is different. If in doubt seek advice from your department of illustration or a Caldicott Guardian or equivalent.
- Check that patients understand that once they have agreed to the recording, they may not be able to stop its subsequent use.
- If you believe the recording is unduly intrusive or damaging to the patient’s interests, you should raise your concerns, even if the patient has consented to the recording.
- Consent guidance around children and young people, and adults who lack capacity, should be applied when deciding whether to involve them in filming (see above).
- You must not participate in making recordings of children or young people who lack capacity, where you believe that they may be harmed or distressed by making the recording.
The duty of confidentiality continues after a patient has died. You should follow a patient’s known wishes, and use the recording in accordance with their consent, as long as you do not believe this was withdrawn before they died.
If the recording is to be made public, you will need to consider whether the patient’s family should be consulted, eg, if it is about a genetic condition.
Should you wish to record a post-mortem examination, information should be shared with the relatives about why such a recording may need to be made. For coroner’s post-mortem examinations, you should check with the coroner or the Procurator Fiscal before taking images of tissues during a post-mortem examination for purposes other than those authorised by them.
Making covert recordings
Such recordings should only be undertaken where there is no other way of obtaining information which is necessary to investigate or prosecute a serious crime, or to protect someone from serious harm, eg, suspected child abuse.
Recording telephone calls
Telephone calls from patients to healthcare organisations may be recorded for legitimate reasons, eg, for medicolegal purposes, staff training and audit, provided all reasonable steps have been taken to inform callers.
Storing and disposing of records
Recordings must be treated in the same way as medical records, and you should be clear about the responsibility for the control and use of such recordings. Anonymised recordings may belong to an employing or contracting body, so make sure you understand your contractual or other rights to hold and use recordings.
If you have any concerns about recording patients, or issues regarding consent and confidentiality, please contact MPS for advice.