Recordings of patients and consultations can benefit medical training, but may expose doctors to consent risks. All recordings which identify living members of the public are considered personal data and are therefore subject to the Data Protection Act.
The GMC guidance ‘Making and Using Visual and Audio Recordings of Patients’ applies to all recordings of patients of any type – except original pathology slides containing human tissue.
Consent is required to record a patient as part of their care or an investigation of treatment, except recordings and images of
- laparoscopies and endoscopies,
- organ functions,
- internal organs or structures,
- pathology slides, and
- ultrasounds and x-rays.
In these instances, consent is inherent in the consent given for the treatment, and the recordings may be used in an anonymised form without additional consent being sought.
When making a recording, doctors should
- explain the purposes of any recordings, and how they are likely to be used;
- explain the length of time the recordings will be kept on record;
- record any discussion regarding consent in the patient’s medical record;
- only record if the patient is comfortable, and the procedure worth the potential negative impact; and
- get clear consent from the patient.
Any recordings a doctor collects are to be treated with the same level of confidentiality as anything else on their medical record. If recordings in which a patient may be identified are to be disclosed, this will require additional consent. If it is in the public interest to disclose recordings, then consent will not be required.
Those under 16 possessing full capacity and understanding to give consent may do so, but doctors should attempt to involve parents or guardians wherever possible. If the patient lacks capacity, then a parent or guardian may give consent on their behalf. If a recording is being made for secondary purposes, and the child becomes distressed or objects to it, then recording must immediately cease.
Adults Lacking Capacity
If a patient lacks the capacity to give consent for a recording, then consent must be obtained from a legal guardian or person who has the authority to make the decision by proxy. If no such person exists or can be found, and it is of immediate importance to the patient’s care to record them, then recordings can be made without consent. If a recording already exists, and a doctor intends to use it for secondary purposes, then it should be anonymised or coded where possible. Again, if it cannot be altered to hide the identity of the patient, consent should be sought from someone with legal power to make decisions on the patient’s behalf. If no such person can be found, and it is pertinent to care, then the legal decision to use the recording lies with the attending physician.
Anonymised recordings may be used after a patient’s death, but the duty of confidentiality persists, and any known wishes should be respected. If the patient is identifiable in recordings, or the recordings are going to be made public, then the patient’s family should be consulted. Consent for integral post-mortem recordings is not required.
If a doctor wishes to record a patient, and use the recordings for research or teaching purposes, then consent should be gained as normal. The patient should also be made aware of how long the recordings will be retained, and how and where they will be used. Consent can also be withdrawn at any time, and the patient’s anonymity should be protected when publishing recordings.
Recordings used in public media, regardless of whether they are anonymised or not, require consent from the patient – ideally in writing. Recordings that were originally made for a care purpose but are now set to be published in the media, require updated consent.
Before a doctor makes a recording of a patient, they should get consent from their employer and the organisation responsible for the patient’s care. Advice on doing so may always be found with the doctor’s Caldicott Guardian. Consent gained from patients should also meet the GMC’s guidance, and the patient should be made aware of how once the recording is made, they may not be able to stop its dissemination and use.
If, once a recording is made, a doctor decides that it is not in the best interests of the patient, they should withdraw their support for the recording until the problems are resolved. Doctors should never support recordings of children or those who lack capacity where those being recorded are obviously distressed.
A covert recording must only take place when attempting to protect someone from serious harm, or to aid in prosecuting a serious crime. Relevant authorisation should be obtained.
Non-covert telephone conversation recordings can be used for audit, legal, or training reasons. All reasonable steps should first be taken to inform callers of why they are being recorded.
CCTV recordings of public areas in hospitals and surgeries are subject to the provisions of the Data Protection Act. The Information Commissioner’s Office CCTV Code of Practice should also be adhered to.