Data Protection and the Use of Clinical Photography and Conventional or Digital Recordings for Teaching, Research and Publication
Content
2. When do I need to obtain consent to use recordings?
3. When is consent not required?
4. Teaching, research and publication
5. What if the patient is not capable of giving informed consent?
8. Existing collections used for teaching purposes
1. Introduction
Most of the guidelines available on the use of images are on seeking consent to make and use images for medical treatment. The same principles, however, apply for research. This summary cannot cover all situations. For further advice contact your Information Rights Manager or ethics committee.
In these guidelines ‘recording’ means all types of audio and visual recordings of people carried out for any purpose, including originals or copies of video and audio recordings, photographs and other visual images of people. It does not mean pathology slides containing human tissue (as opposed to an image of such a slide). Neither does it include CCTV recordings of public areas; this is the subject of a separate policy.
2. When do I need to obtain consent to use recordings?
Photographic and video recordings made for clinical purposes form part of a patient’s record. Photographs or videos made for treating or assessing a patient must not be used for any purpose other than the patient’s care or the audit of that care, without the express consent of the patient or the person with parental responsibility for that patient. The exceptions to this are set out below. Guidelines on obtaining informed consent are available. Written consent must be obtained to use a recording for teaching, publication or research, making sure that the subject is fully aware of the possible uses of the material. It should be made especially clear to the subject that it will not be possible to control material once it has been published, especially if it is to be published on the Internet. A recording must not be used for publication if a child objects, even with the parent’s agreement.
Photographic and video recordings made for treating or assessing a patient from which there is no possibility that the patient might be recognised may be used within the clinical setting for education or research purposes without express consent from the patient as long as this policy is well publicised. However, express consent must be sought for any form of publication, or for use outside the clinical setting.
3. When is consent not required?
Permission is not normally necessary to make the recordings listed below because they cannot, on their own, identify the patient. Nor is consent necessary to use them for any purpose provided that, before use, they are suitably anonymised (for example by the removal of any identifying information such a name on an X-ray):
- Images taken from pathology slides
- X-rays
- Laparoscopic images
- Images of internal organs
- Ultrasound images
Permission should be sought, however, if these images show extreme or unusual features or injuries that could identify the subject, or if they are illustrating a disease or condition that is so rare that individuals could be identified.
4. Teaching, research and publication
For the purposes of teaching, publication or research, written consent must always be obtained in advance to make and use a recording of a patient. It should be clear to the volunteer that he or she can stop the recording at any time and that he or she is entitled to view the image in the form in which it will be shown before deciding whether to allow its use. If he or she does not consent for the image to be used for these purposes it must be safely destroyed. The patient must be made fully aware of the possible uses of the material, and that it will not be possible to control the use of material once it has been published, especially if it is to be published on the Internet. If research participants consent to their data being published in a book only, it is unlikely that such consent would cover publishing images on the Internet or electronically.
5. What if the patient is not capable of giving informed consent?
You may wish to make a recording specifically for the purposes of education, publication or research when an individual is unable to give informed consent because, for example, he or she is unconscious. In such cases it is acceptable to make such a recording but consent must be obtained when the person regains capacity. The recording must not be used until consent has been given and must be destroyed if the patient does not consent to its use.
If the patient is unlikely ever to be able to give or withhold consent you should discuss the matter with those close to the individual. The recording should not be used in any way that might be against the best interests of the subject. Advice should be sought from the Information Rights Manager or an ethics committee in such cases.
No recordings of people without capacity to give consent should ever be made if you could achieve your purposes by recording people with capacity.
6. Anonymising recordings
See also: Anonymising records - Frequently Asked Questions
When anonymising recordings, remember that apparently insignificant features may still be capable of identifying the patient to others, such as distinguishing marks, tattoos, posture and gait. Since it is difficult to be absolutely certain that a patient will not be identifiable from a recording, no recordings other than those mentioned above should be published or used in any form to which the public have access without the consent of the patient.
7. Telephone calls
Recordings of telephone calls fall under the Telecommunications Act 1984. Anyone using a telephone is subject to licence conditions under this Act and is obliged to take all reasonable steps to tell callers that their calls may be recorded, and maintain a record of the way in which callers have been informed. It is illegal to make intentionally secret recordings of telephone calls.
8. Existing collections used for teaching purposes
Some doctors may have existing collections of recordings that they use solely for teaching purposes within a medical setting. Since 1997 GMC standards have required clinicians to obtain permission to make any recording that would not form part of the patient’s assessment or treatment, regardless of whether the patient may be identifiable. However, recordings may have been obtained for teaching purposes before 1997 without it having been recorded whether permission has been obtained. Such collections can be very valuable for teaching purposes. The following rules apply to such collections:
- Recordings that have been effectively anonymised can continue to be used.
- Recordings made before 1997 that have not been anonymised can continue to be used but should be replaced as soon as practicably possible with similar recordings for which it can be proved that a patient has given consent. Departments using images must have a documented, timetabled schedule of replacement.
- Recordings made after 1997 from which a patient can be identified but for which consent cannot be proved must not be used.
9. Security
Appropriate arrangements should be made for the secure storage, proper disclosure and safe disposal of recordings. For further advice contact the Information Rights Manager or the Bursar's Office.
10. The media
Before making arrangements for external individuals or organisations to film research subjects you should inform the Public Relations Office and the organisation where volunteers are being filmed if this is different. Appropriate permission for the recording should be obtained from all bodies as well as the patient. Within the NHS, a contract with the filmmaker will normally be required.
If you are involved in any way with recording volunteers for television and any other public media you should satisfy yourself that permission has been properly obtained from the patient, even if you are not responsible for obtaining that permission or do not have control over the recording process. The BBC and the Independent Television Commission have guidance for programme makers that requires permission to be fairly obtained in such cases.
It should be made clear to patients that if they agree to the recording they may not be able to withhold consent for future use. If patients wish to restrict the use of material they should get written agreement from the owners of the recording before recording begins.
Particular vigilance is required in recordings of those who cannot give permission themselves. Individuals’ interests, well-being, privacy and dignity must not be compromised by the recording. If you believe the recording is too intrusive or damaging to a patient’s interests you should raise the issue with the programme recorders. If you remain concerned do your best to stop the recording and withdraw your co-operation.
11. Sources
For further information, and for information on making recordings as part of the assessment or treating of patients please see the GMC policy
This policy also contains guidance on:
- making identifiable recordings during post mortem,
- covert surveillance of patients
- where there is the risk of death or serious harm to others
- recordings of emergency treatment and of unconscious patients for treatment or audit
Institute of Medical Illustrators
British Medical Journal
'Videos, photographs and patient consent' by Catherine A Hood, Tony Hope, Phillip Dove
'Informed consent in medical research: Journals should not publish research to which patients have not given fully informed consent - with three exceptions', Len Doyal, BMJ 1997;314;1107 (12 April)
American Medical Association
'Seeing right through it' by Sara Taub