POLICY FOR THE PHOTOGRAPHY AND VIDEO RECORDINGS OF PATIENTS

Co-ordinator:

Head of Medical Photography

Reviewer:

Head of Medical Photography

& NHSG Data

Protection/Caldicott Working Group

Approver:

NHSG Information Steering Group

&Partnership Forum of

Grampian NHS Board

Signature Signature Signature

Identifier:

NHS/POL/1/MP

Review date:

This policy will be reviewed annually by the Head of Medical

Photography

Implementation date:

1st May 2005

UNCONTROLLED WHEN PRINTED

VERSION 1:May 2005

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NHS GRAMPIAN PHOTOGRAPHY AND VIDEO RECORDINGS OF PATIENTS

POLICY

This policy is also available in large print and on computer disk. Other formats can be supplied on request.

Please call the Corporate Communication Team on 01224 554400 for a copy.

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NHS Grampian

Photography and Video Recordings of Patients: Confidentiality and Consent, Copyright and Storage

1 Introduction

1.1 This policy has been created following the issue of guidance from the General Medical Council, the British Medical Association and the Department of Health regarding the making and usage of visual recordings of patients. NHSGrampian has therefore adopted the policy that informed consent to photography is obtained from all patients and in all cases, unless in exceptional circumstances (see para 2.8 & 2.9). In all cases of photography or video recording, care must be taken to respect the dignity, ethnicity and religious beliefs of the patient.

1.2 Photographs, whether originating in the Department of Medical Illustration or using cameras owned by other NHS Grampian, Medical School departments or by individuals, which illustrate a patient’s condition or an aspect of the treatment, form a part of that patient’s medical records and are protected in the same way as any other medical record.

1.3 All photographs taken by employees of NHSG, including staff on honorary contracts employed by Aberdeen and Robert Gordon Universities, whether taken on their own camera or not, are copyright of NHSG (Ref. Copyright Act 1988, ‘employed person’). Also see section 4.

1.4 Negatives, master transparencies and original digital camera files must be logged and stored appropriately. In the case of digital files, they must not be manipulated in any way, including compression, before storage. (Section 5).

1.5 Camera image cards must be taken to Medical Illustration to have them down loaded onto the server and files then deleted from the cards.

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1.6 It is recognised that while digitally originated images are intrinsically no different to traditional photographs, they are easier to copy in electronic form and are therefore more at risk of both image manipulation and inappropriate distribution. Particular care must be taken to protect the image and maintain its integrity. (Section 6).

2 Confidentiality and Consent

2.1 Confidentiality is the patient’s right and may usually only be waived by the patient or by someone legally entitled to do so on his behalf. You are reminded that breaches of confidentiality may amount to professional misconduct and could have inevitable disciplinary consequences. Data protection Act 1998 http://www.show.scot.nhs.uk/confidentiality/

2.2 In order to ensure that the patient’s right to confidentiality is preserved, NHS Grampian requires:

i. That the patient’s consent is obtained in writing, for a specific use. The levels of consent are defined as :

Consent for confidential case notes for health care purposes

Consent for teaching under & post graduate health care students and care staffa) locallyb) nationally/internationally

Consent for publication Other specified purposes described

ii. That if copies for further uses are required, additional consent is sought from the patient and on instruction from the clinician/health care professional, these are supplied by Medical Illustration. Caldicott 1997 http://www.publications.doh.gov.uk/ipu/confiden/report/recs.htm

2.3 The practise of obtaining the patient’s written consent only in the case of full length or facial photographs, from which the patient can easily be identified, is not sufficient. It is sometimes possible for people to be identified from other categories of photograph, e.g. showing a tattoo or other distinguishing mark. Nor is it sufficient to rely on the photographer or consultant’s

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judgement that a particular patient is unlikely to be identified from a particular photograph. Patient’s images may not be altered in any way to achieve anonymity in order to avoid the need for consent. Blacking out of the eyes in a facial photograph is not an acceptable means of anonymising the image.

2.4 When photography or video recording of patients is carried out, the consent form to be used is as at Appendix 1.This must be used by all NHSG employees including those on honorary contracts employed by Aberdeen and Robert Gordon’s University.

2.5 In the case of minors, the patient or guardian should sign the consent form. However, in Scots Law (Age of Legal Capacity Act 1991) persons under the age of 16 years can give consent (or refuse) providing the clinician treating them is able to determine that they are capable of understanding the nature and outcome of the treatment.http://www.hmso.gov.uk/acts/acts1991/Ukpga_19910050_en_2.htm Section 2, paragraph 4

2.6 Photographs of the unconscious patient e.g. in theatre may be taken, provided consent is obtained retrospectively by the requesting clinician/professional health care worker. This has to be specific and agreed by the patient before any photographs are released from Medical Illustration.

2.7 The recording – especially on video – of psychiatric patients requires particular care and guidelines. These procedures have been published by the Institute of Medical Illustrators. (Code of Responsible Practice, published 1996 and updated 1998, available from The Hon. Secretary, Institute of Medical Illustrators, Medical and Dental Illustration Unit, Leeds Dental Institute, Clarendon Way, Leeds, LS2 9LU. Copies are held in the Medical Photography and Illustration Services.)

2.8 Photography without consent may be prescribed in certain circumstances such as, for example, suspected non-accidental injury of a child, where it is unlikely that the parent or guardian will give consent and the recording of injuries is demonstrably to the patient’s benefit of care. Consultant authority is required in such cases.

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2.9 Exceptionally, where the patient has an active incapacity certificate, consent without permission may be obtained under ‘Adults with Incapacity (Scotland) Act 2000 Part 5 medical treatment and research.http://www.scotland.gov.uk/about/JD/CL/00016360/pdfmedflow.pdf (appendix 2)

2.10 Patients have the right to withdraw consent for use of their images at any time.

2.11 In the case of electronic publication it should be made clear that once a photograph is in the public domain, e.g. the Internet, there is little or no opportunity for effective withdrawal of consent.

2.12 If a patient dies before a retrospective consent can be obtained, material can only be released with the consent of the deceased’s personal representatives. In addition wherever possible the consent of the next of kin or near relatives should be obtained, particularly where the personal representatives are not relatives of the deceased. You are reminded that the duty of confidentiality survives the death of the patient.

2.13 If a consenting patient subsequently dies, permission should be sought for any new use out side the terms of the existing consent. In this instance the consent of both the personal representative and the nearest relative(s) is required.

3 Digital Photography of Patients

3.1 Where digital photography is to be used to record images of patients, due care must be given before the start of sessions to ensure that the quality of the image (in terms of both resolution and colour depth) is adequate for its purpose. It is also essential that the camera operator understands how to obtain results which will be clinically meaningful.

3.2 The use of picture messaging phones requires the same levels of consent as digital cameras. The logging and storage of these images must also meet the provisions set out in the Data Protection Act 1998

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3.3 In order to maintain the integrity of the original camera image, manipulation of a copy may only be carried out to the whole image, and must be limited to simple sharpening, adjustment of contrast and brightness and correction of colour balance. Image cropping is not an acceptable form of manipulation.

3.4 Images of patients may only be transferred to computers belonging to NHSG.

3.5 No images of patients should be transmitted over a public network without explicit permission of the patient and or parents/carer.

4 Copyright / Publication of Medical Photographs

4.1 Copyright is a separate but closely related issue. NHS Grampian holds the copyright of all photographs taken of its patients.

4.2 It is important that in any contract for publication the copyright in the photograph remains with NHS Grampian and does not pass automatically to the publishers on first publication. Unless this is ‘written in’ NHSG might well find itself unable to protect the patient’s interests by exercising ownership control over further publication of the photograph.

4.3 All staff and others described in 1.2 acquiring copies of medical photographs in the course of their duties may retain these for teaching purposes (if the patient has explicitly consented to this), but must undertake only to use them within the terms of the original consent (see clause 2.2 above).

4.4 It is vital to ensure that copyright in any medical photographs which is published is retained by NHS Grampian.

4.5 Copyright is protected when the images are labelled with the words:“This print is the copyright of NHS Grampian. Permission is granted for first publication in ………………….(title of journal or book and date of publication)……………….”

4.6 All prints produced by Medical Illustration carry a copyright label that prohibits reproduction.

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4.7 It is the author and NHSG’s responsibility in all cases to obtain permission to publish from the patient. This must be filed in the patient’s case notes.

5 Logging and Storage

5.1 Since any medical record has to be available for disclosure if required, (e.g. litigation) it is essential that every photograph is properly logged and stored.

5.2 In the case of photographic negatives and prints, these must be securely stored in the originating department. e.g. Medical Illustration Department or clinician’s office.

5.3 In the case of photographic transparencies, a second copy should be made at the time of photography, to be used as a master transparency. They must be securely stored in lockable filing cabinets in the Medical Illustration department. Where it is impossible to obtain a master as well as a show copy, the original photographs should be regarded as masters and duplicates made as necessary for further use.

5.4 In the case of a digital picture file, the original file – with no manipulation or compression applied – must be written to disc and stored on the Medical Illustration server (as no other secure central server facility exists at present). For later retrieval purposes, each image should be assigned a file name by which it can be clearly identified, incorporating the patient’s hospital number/CHI number and the date of photography.

6 Non Clinical Photography/Video

6.1 Non Clinical photography for the purposes of this policy document means any photography/video which does not involve photographing a patient’s specific clinical condition.

6.2 Members of staff and or patients who participate in photographs or videos, illustrating a piece of medical equipment, or procedure for exhibitions, displays in a public place or information leaflets must sign an agreement form. This is known universally as a Model Release Form. (Appendix 3)

6.3 Freelance professional photographers are sometimes employed to take this sort of photograph. They may only be introduced to

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NHSG premises by arrangement with the Director of Corporate Communications.

7 Medical photography carried out by outside companies orpersons not employed by NHS Grampian

7.1 Freelance and others not under contract to NHSG must seek the patient’s permission under 2.2 and in addition will require approval of the Director of Corporate Communications. This requirement is intended both to ensure the protection of both the patient’s rights and NHSG, and is intended to be helpful rather than restrictive.

7.2 The Director of Corporate Communications has to be satisfied that: if necessary, Ethical Committee approval has been obtained consent procedures are appropriate copyright and reproduction rights are suitably protected storage of negatives and transparencies is secure the requirements of the Data Protection Act and the Caldicott

Guardians are met film processing is carried out be secure laboratories equipment proposed to carry out the work is suitable for the

appropriate purposes, e.g.- medical equipment

- exhibitions - displays

- leaflets - teaching - research publications

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Appendix 1

NHS GrampianConsent for Clinical Patient name…………………..

Photography & or Video patient label

Unit number…………………...

Consent

In view of the explanation given to me by Prof/Dr/Mr/Ms/Mrs……………………………ward/dept……………………I consent to photographs/video being taken as detailed below. Print name patient’s consultant

Please initial box 1. For my confidential notes

2. For teaching under & post graduate healthcare students and staff

a. Local b. National/international or for the specific purpose described below.

3. Single publication in medical journals, books, medical DVD’sThis consent does not extend to any further publication(s)

4. For the specific purpose described below

……………………………………………………………………………………………………………………………

……………………………………………………………………………………………………………………………

……………………………………………………………………………………………………………………………

Signature of patient/parent/guardian……………………………… Date………………….

Diagnosis and photographic views required (must be completed)

………………………………………………………………………………………………………………………………………..

………………………………………………………………………………………………………………………………………...

………………………………………………………………………………………………………………………………………...

Signature clinician …………………………………………………. Date……………

N.B.

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Images stored in Medical Photography Department/elsewhere please specify ……………………….If the clinical photography/video is undertaken by Medical Illustration, this copy must accompany the patient, or send to Medical illustration, complete with instructions. Carbon copy must remain in the notes.If the clinical photography/video is undertaken by NHSG staff, this copy must remain in the notes.Electronic copies of this form may also be used, and are available on the Information Governance Intranet Website under “Data Protection”

Appendix 2

Treat emergency, thenfor further treatment

Adults with Incapacity (Scotland) act 2000Part 5 – Medical – Treatment - Flowchart

Patient aged 16 or over

Emergency?

Has patient the capacity to decideabout the proposed treatment?

Treat, applying normal rulesof consent

Has the patient a Welfare Attorney or Welfare Guardian or doesSomeone hold an intervention order about treatment

Complete a certificate ofIncapacity and treat unlessexceptions apply, applyingprinciples of Act

No, because notResponsible & practicable

Discuss and agree treatment ?

Yes No

Yes No

Yes

Yes

Complete certificate andtreat unless exceptions apply, applying Principles of the Act

But challenged byinterested party

Apply to MWC for 2nd opinionon treatment

Give treatment to preserve life orprevent serious deterioration

Disagreement Agreement

But challenged byInterested party

Court of Session

Implement judge’s decision

Complete certificate and treatunless exceptions apply, applyingprinciples of the Act

No

Consult WA/WG/holder

No

Yes

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Appendix 3

NHS Grampian Model Release Form

Permission from person(s) participating in photographs and or video for publicity or exhibition purposes. (Non clinical photography)

In view of the explanation given to me by (block capitals)

Position/grade and Department

I agree to appear in photographs/video* taken by NHS Grampian for publicity,Information and exhibition purposes. I understand they may be used in articles seen by the general public, in books, leaflets, magazines or DVD/CD’s on public sale.

*delete as appropriate

Signed

Print

Date

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