Originally published February 2004
Beware the temptations of technology
Thousands of video and picture messaging telephones will recently have been bought by individuals. It will be tempting to use this technology in the workplace but should the temptation be resisted?
Photographs and film, indeed any image which illustrates a patient’s condition or aspect of their treatment, forms part of the patient’s medical record.
It does not matter whether the image was taken during working hours or in a clinician’s own time. Nor does it matter whether the image was taken in the medical photography department or by clinicians themselves using personal cameras and telephones. Regardless of the circumstances, the record remains the property of the relevant Health Trust.
All medical records, and therefore all illustrative patient images from which personal information can be gained, are subject to the provisions of the Data Protection Act 1998 because they fall within the definition of personal data and sensitive personal data.
There is a very real danger that the provisions of the Act are being disregarded as new image technology is introduced, simply because health professionals are not aware how the Act applies to their practice.
Individual clinicians may well think it in their patient’s best interests to take an image on a mobile phone and send it to a colleague on another site for a second opinion. Although perhaps well motivated, this action would be a mistake without the protection of a system of documentation and consent. Clinicians risk breaching the Data Protection Act and the common law principles of confidentiality and consent.
Establishing an up-to-date protocol
Trusts and private hospitals should develop an up-to-date and detailed Protocol which specifically addresses the use of patient images and the new technology.
Here are some areas which the Protocol should cover:
• Staff should understand that "photographic and video recordings which are 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 person with parental responsibility for that patient…" (Department of Health ‘Good Practice in Consent Implementation Guide’ 2001).
• The Protocol should set out who has the responsibility for obtaining express consent. Will it be the clinician or the medical photographer? Many health professionals are not sure or assume that the other party is handling the problem. As a result, many patients are currently receiving little or no information about the use of their images.
• There are three limbs to ‘express’ or ‘informed consent’: the patient must have the mental capacity to make a choice, the consent must be given voluntarily and there must be full disclosure about the potential uses to which the images may be put.
• The Protocol should particularly give staff guidance on what constitutes full disclosure, perhaps by encouraging proper use of patient information leaflets.
• Additionally, the Protocols of Trusts and private hospitals should cover the taking of and use of images in cases where the patient lacks the ability to make his or her own treatment choices. In general terms, therapeutic images should only be taken of an incompetent patient if it is considered in his or her best interests. In most cases non-therapeutic images should only be taken if it is possible to render the images genuinely anonymous.
• Trusts and private hospitals might also consider introducing a system whereby images are clearly labelled "only to be used for diagnostic or treatment purposes" or "authorised for undergraduate teaching" to minimise the risk of mistakes.
Give into temptation of technology by all means, but write a new Protocol first!
© RadcliffesLeBrasseur
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