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Making and Using Audio and Visual Recordings of Patients Policy 

Post Holder Responsible for Policy:
Information Governance Manager
Directorate Responsible for Policy:
Chief Executive's Directorate
Contact Details:

Salisbury District Hospital

01722 336262 Ext 2119

Date Written:
October 2003
Date Revised:
December 2011
Approved By:

Approved by Information Governance Steering Group

Ratified by Joint Board of Directors

 

Date Approved:

Approved 15th December 2011

Ratified 18th January 2012

Next Due for Revision:
May 2016
Date Policy Becomes Live:
18th January 2012

Version Information

Version No. Author Review Date Description of Changes
3
.
1
Information Governance Manager
October 2015
Review date extended to 1st May 2016 by instruction of IG Manager

Table Of Contents

Introduction
Scope
Definitions
Responsibilities
Exclusions
Basic Principles
Recordings for which Separate Consent is Not Required
Recordings for which Permission/Consent is Required
Recordings Made as Part of the Assessment or Treatment of Patients
Recordings for Training, Assessments, Clinical Audit, Research or Medico-legal Reasons
Recordings for use in the public media (television, radio, internet, print)
Digital Recordings
Copyright and Publication
Processing and Storing Recordings
References Equality Impact Assessment Communication & Implementation Plan Privacy Impact Assessment (PIA) Appendices
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Introduction

This policy provides additional supplementary guidance for all staff and must be read in conjunction with the Trust’s Data Protection and Discloser Policy, Consent to Examination or Treatment and Information Risk and Security Policies.

This policy covers all types of audio and visual recordings of patients, carried out for any purpose. It has particularly relevance to Section 9 of the Salisbury Foundation Trust Policy on Consent to Examination or Treatment, 'Clinical Photography and Conventional and Digital Video Recordings'.

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Scope

Scope of this policy (based on GMC guidance)

It provides more detailed guidance on how the principles in Consent: patients ad doctors making decisions together and confidentiality apply where doctors make recordings of patients for a variety of purposes. This might include, for example:

  • Recordings made as part of a patients care;
  • For teaching, training, or assessment of health professionals and students;
  • Research and development;
  • Recordings for use in widely accessible public media, such as o the internet or broadcast on radio of television.

This guidance covers visual and audio recordings of patients made and used in any circumstances where clinicians work in a professional capacity.

This includes recording made and used in any circumstances where clinical staff work in a professional capacity.

This includes recordings made:

  • On the Trust’s healthcare site and includes peripheral clinics, within or outside the UK and/or
  • As part of the assessment, investigation to treatment of patients’ condition or illness, and /or
  • For the purposes of teaching, training or assessments of healthcare professionals and students, research or other health related uses which are not designed to benefit the patients directly, described as “secondary purposes”.

If you wish to make recordings of the body, organs or tissue during a post-mortem examination, for a secondary purpose such as teaching or research, you should seek consent at the same time as you seek consent to undertake the examination. If you have not foreseen this possibility, you may make recordings (including photographs of pathology slides) for secondary purposes without consent, provided that they do not include images that might identify the person.

A quick reference flow chart detailing the procedures for consent when making visual and audio recording of patients has been included as Appendix A to this policy.

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Definitions

3.1 Recordings

'Recordings' in this policy means originals or copies of audio recordings, photographs, and other visual images of patients that may be made using any recording device, including mobile phones.

3.2. Personal Data

Personal data is defines as information which contains both fact and optional about a living individual. Personal data can be held in the following formats:

  • Computer files, including emails
  • Databases
  • Spreadsheets
  • Paper files or recordings
  • Microfiche
  • CCTV, pictures, audio

3.3 Implied Consent

Implied consent is the legal term which states that by doing something you are giving your consent for something to happen. An example is an appointment made with a physician by a patient with a physical complaint; it is implied that by making the appointment the patient gives consent to the physician to make a diagnosis and offer treatment or to refer them to the local hospital to see a specific Consultant.

3.4 Explicit Consent

Explicit consent is the term used to describe an agreement for something to happen and is given freely, without pressure. It is best practice to ensure that explicit consent is recorded in a written format to ensure there is no ambiguity at a later date.

3.5 Gaining Consent in Emergency Situations

If it is not possible to get written consent from a patient in an emergency situation, or if the patient is unconscious, you must still obtain their explicit consent to use the images, prior to their distribution or use.

3.6 Secondary Purposes

Personal information is provided by patients for their direct clinical care. If this information is used for commissioning of services, research, audit or healthcare management and planning, it is defined as being used for purposes secondary to the reason it was provided. Therefore, data used for a secondary purpose must be appropriately anonymised or pseudonymised before being used.

3.7 Pseudonymised Information/data

Pseudonymisation is a technique used to remove identifying personal information, such as name, data of birth, NHS Number etc. It is removed in such a way which allows the information to be restored to an identifiable format when required.

3.8 Anonymised Information

This technique is often used in drug trials where each patient’s is allotted a unique identification number or code. The ‘key’ is retained by the person or service which coded the information, so that it can be reconnected with the patient if required.

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Responsibilities

4.1 Your Responsibilities

If you are involved in any way with recording patients for television or other public media, you should satisfy yourself that patients' permission has been properly obtained, even if you are not responsible for obtaining that permission or do not have control of the recording process. Both the BBC and the Independent Television Commission issue guidance for television programme makers that require permission to be obtained in a way that is consistent with this policy.

In addition, you should make sure that patients understand that, once they have agreed to the recording, they may not be able to withhold their consent for its subsequent use. If patients wish to restrict the use of material, they should get agreement in writing from the owners of the recording, before recording begins.

You should be particularly vigilant in recordings of those who are unable to give permission themselves. You should consider whether patient's interests and well-being, and in particular their privacy and dignity, are likely to be compromised by the recording, and whether sufficient account has been taken of these issues by the programme makers. If you believe that the recording is unduly intrusive or damaging to patients' interests, you should raise the issue with the programme makers. If you remain concerned, you should do your best to stop the recording, for example by halting a consultation, and withdraw your co-operation.

4.2 Clinician Responsibilities

It is the responsibility of the Lead clinician to ensure that appropriate written consent is taken prior to recording commencing. Appendix B must be completed in all circumstance and filed in the patient’s medical record.

The privacy of all patients must be taken into consideration when visual images and recordings are made. A prime example of this is when a recording is being made within Main Theatres and staff and patient conversations in the background are inadvertently recorded. This could potentially lead to another person’s privacy, dignity and confidentiality being breached.

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Exclusions

5.1 Pathology Slides

'Recordings' in this policy does not include pathology slides containing human tissue (as distinct from an image of such a slide). Photographs of microscope slides may be made without consent for the purpose of care or treatment of a patient, or for a secondary purpose, provided that images are anonymised or coded before use for a secondary purpose, and always anonymised before they are published in the public domain.

5.2 Paper Records

This policy does not cover copies of written paper records.

5.3 Work Place Recordings

This policy does not cover the recording of staff within their work place used to illustrate or identify occupational hazards.

5.4. CCTV Recordings

This policy does not cover CCTV recordings of public areas in the hospital. These recordings are subject to separate guidance from the Information Commissioner’s Office.

Salisbury NHS Foundation CCTV cameras are managed by the Trust’s Security Management Specialist based within Facilities. They can be contacted via extension 4445 or via the Facilities receptionists on extension 2598.

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Basic Principles

When making recordings you must take particular care to respect patients' autonomy and privacy since individuals may be identifiable from minor details that you may overlook. The following general principles apply to most recordings although there are some exceptions, which are explained later in this policy.

  • Always inform the patients about the purpose of the recording;
  • Always ensure that you have appropriate consent or valid authority;
  • Seek permission to make the recording and get consent for any use or disclosure before taking the
  • Give patients adequate information about the purpose of the recording when seeking their permission;
  • Ensure that patients are under no pressure to give their permission for the recording to be made.
  • Stop the recording if the patient asks you to, or if it is having an adverse effect on the consultation or treatment;
  • Do not participate in any recording made against a patient's wishes;
  • Ensure that the recording does not compromise patient's privacy and dignity;
  • Do not use recordings for purposes outside the scope of the original consent for use, without obtaining further consent;
  • Make appropriate secure arrangements for storage of recordings
  • Ensure you are familiar with, and follow the Law and this procedure.

You must not:

  • Make or participate in making recordings against a patient's wishes, or where a recording may cause the patient harm.
  • Disclose or use recordings for purposes outside the scope of the original consent without obtaining further consent (except in the circumstances where the personal data has been fully anonymised or pseudonymised).

6.1 Recording Images of Children

When recording children who lack the understanding to give their permission, permission. Consent must be sought from a parent or guardian. Children under 16 who have the capacity and understanding to give permission for a recording may do so. You should make a note of the factors taken into account in assessing the child's capacity.

6.2 Mental or Physical Capacity

When a mental or physical incapacity or illness prevents patients giving their permission, you must get the agreement to recording from a close relative, carer or Independent Mental Capacity Advocate (IMCA).

6.3 Consenting on another Person Behalf

People agreeing to recordings on behalf of others must be given the same rights and information as patients receive when acting on their own behalf.

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Recordings for which Separate Consent is Not Required

You do not need to seek separate permission to make the recordings listed below. Nor do you need consent to use them for any purpose, provided that, before use, the recordings are effectively anonymised by the removal of any identifying marks (writing in the margins of an x-ray, for example):

  • Images taken from pathology slides
  • X-rays with all identifiers removed (be aware that very rare injuries may mean an image is identifiable even without the patients name)
  • Laparoscopic images and endoscopic images
  • Images of internal organs including the retina
  • Ultrasound Images

Such recordings are unlikely to raise issues about autonomy and will not identify the patient. It may nonetheless be appropriate to explain to the patient, as part of the process of obtaining consent to the treatment or assessment procedure that a recording will be made.

You may disclose or use any of the recordings for a secondary purpose without seeking consent provided that, before use, the recordings are anonymised for example, by the removal or coding of any identifying marks such as writing in the margins of an X-ray.

Where a recording is a necessary element of the direct clinical care of the patient, it is acknowledged that appropriate identification is essential.

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Recordings for which Permission/Consent is Required

You must explain to the patients why a recording would assist their care, what form the recording will take, and that it will be stored securely.

Wherever practicable, you should explain any possible secondary uses of the recording in an anonymous or coded form when seeking consent to make the recording. You should record the key elements of the discussion in the patient's medical record.

All other recordings not already mentioned require permission.

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Recordings Made as Part of the Assessment or Treatment of Patients

You must seek permission to make any recording for the assessment or treatment of patients. You should explain that a recording will be made, and why. You need only give an oral explanation. You should record in the medical notes that the patient has given permission for which use of the consent form may be appropriate.

When conducting a hospital post-mortem examination, you must seek permission from a close relative or carer before making any recording from which the deceased may be identifiable. If the death is the subject of a medico-legal investigation, the proposed recording should be discussed with the coroner who has authorised the investigation.

Recordings made for clinical purposes form part of the medical record. As such, when considering disclosure of a recording, you should treat the recording in the same way as any other part of the medical record. In general, that means that you should seek consent for the disclosure. However, if you are sure that the patient will not be identifiable from the content of the recording, and the recording is effectively anonymised by the removal of identifying marks, you may use the recording for teaching purposes without consent.

When making a judgement about whether the patient may be identifiable, you should bear in mind that apparently insignificant features might still be capable of identifying the patient to others. Since it is difficult to be absolutely certain that a patient will not be identifiable from a recording, no recording other than those mentioned in paragraph 5 above should be published or used in any form to which the public may have access, without the consent of the patient. The GMC booklet on confidentiality sets out detailed guidance on disclosure of personal information.

In exceptional circumstances, you may judge that it is in the patient's best interests to make an identifiable recording without first seeking permission, and to disclose the recording to others without their knowledge. Before proceeding you should discuss the recording with an experienced colleague. You must be prepared to justify your decision to the patient and, if necessary, to others. If the recording will involve covert video surveillance of a patient, it is likely to be within the scope of the Regulation of Investigatory Powers Act 2000 and you should seek advice before proceeding. A decision to use covert video surveillance, for example in cases of suspected induced illness in children, will normally be based on discussions amongst all the agencies involved, and the surveillance itself should be undertaken by the police.

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Recordings for Training, Assessments, Clinical Audit, Research or Medico-legal Reasons

You must obtain permission to make, and consent to use; any recording made for reasons other than the patient's treatment or assessment.

Before the recording, you must ensure that patients:

  • Understand the purpose of the recording, who will be allowed to see it – including names if they are known – the circumstances in which it will be shown, whether copies will be made, the arrangements for storage and how long the recording will be kept.
  • Understand that withholding permission for the recording to be made, or withdrawing permission during the recording, will not affect the quality of care they receive.
  • Are given time to read explanatory material and to consider the implications of giving their written permission.

After the recording, you must ensure that:

  • Patients are asked if they want to vary or withdraw their consent to the use of the recording.
  • Recordings are used only for the purpose for which patients have given consent.
  • Patients are given the chance, if they wish, to see the recording in the form in which it will be shown.
  • Recordings are given the same level of protection as medical records against improper disclosure.
  • If a patient withdraws or fails to confirm consent for the use of the recording, the recording is not used and is erased as soon as possible

10.1 Recordings of Emergency Treatment and of Unconscious Patients

If recordings are to be used only for training or clinical audit, you may record patients who need emergency treatment but cannot give their permission for the recording to be made. You do not need a relative's agreement before starting the recording but must stop it if a relative objects. Before these recordings are used, however, the patient's consent must be obtained or, if the patient has died, a relative must agree to it.

When no recording has been planned, but a record of an unexpected development would make a valuable educational tool, you may record patients undergoing treatment. If you cannot get permission at the time because, for example, the patient is anaesthetised, you must ensure the patient is later told about the recording and gives consent to its use.

With recordings made in these circumstances, you must follow patient's instructions about erasure or storage. The only exception is if you think you need to disclose the recording because of the advice in the GMC booklet on Confidentiality for example to protect the patient or others from risk of death or serious harm.

10.2 Existing collections used for teaching purposes

Some doctors may have existing collections of recordings, which they use solely for teaching purposes within a medical setting. Both this policy, and guidance published in 1997 by the GMC, requires permission to be obtained to make any recording which is not part of the patient's assessment or treatment, regardless of whether the patient may be identifiable. However, recordings may have been made for teaching purposes prior to 1997 without it being recorded whether or not permission had been obtained. Such collections may have a significant value for teaching purposes.

You may continue to use recordings from which the patient is not identifiable, and which were made for teaching purposes prior to 1997. You should, however, seek to replace such recordings at the earliest opportunity with similar recordings for which permission can be shown to have been obtained. You may also continue to use effectively anonymised recordings that were originally made for treatment or assessment purposes, in line with paragraph 9 above. However, you should not use any recording, from which a patient may be identifiable, for teaching purposes if you cannot demonstrate that consent has been obtained for that use.

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Recordings for use in the public media (television, radio, internet, print)

Before making any arrangements for external individuals or organisations to film patients in a health care setting, you must inform your employing or contracting body and the organisation in which the patients are being treated if this is different. You should obtain appropriate permission for the recording. Within the NHS, a contract with the filmmaker will normally be required.

You must not make recordings for use in publicly accessible media without written permission, whether or not you consider the patient to be identifiable. "Publicly accessible media" includes medical journals.

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Digital Recordings

Digital images are intrinsically easier to copy, manipulate and disseminate than conventional recordings. Particular care must be taken to protect such records and maintain their integrity. Where digital photography is to be used to record images of patients, due care must be taken before acquiring the images to ensure that the quality of the images, in terms of both resolution and colour depth, is adequate for their purpose.

Original digital image files should be stored securely in their proprietary camera format prior to any processing. Each image must be assigned a file name by which the patient can be clearly identified, preferably incorporating name and registration number. In order to maintain the integrity of the image, manipulation 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.

The Trust's policy on Data Protection, Confidentiality and Disclosure applies. Images should be stored in a secure place. All computers, disk drives and other storage media must be placed in a secure location and kept under lock and key when not in use. Access to images should be password protected. Computer screens must be positioned so that images of patients cannot be seen by unauthorised staff or passers-by.

Images may only be transferred to encrypted computers for use in connection with research projects that have been prior approved by the Research Ethics Committee and registered with the Data Protection Officer. Staff undertaking storage and retrieval of digital images must be trained in these procedures and have approved access to the Trust's network.

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Copyright and Publication

The copyright of all recordings made by Salisbury NHS Foundation Trust staff in the course of their work belongs to the Trust, regardless of ownership of recording equipment and medium.

It is important that in any contract for publication, the copyright of confidential recordings remains with the Trust and does not pass automatically to the publishers on first publication. The Trust might find itself unable to protect the patient's interest by exercising control over further publication of the image. Staff who sign a contract with a publisher have a responsibility to delete from the contract any suggestion that the copyright will pass to the publisher.

Staff who acquire copies of recordings during the course of their duties with the Trust may retain these after they have left the Trust, but must undertake only to use them within the terms of the original consent. Copyright remains with Trust.

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Processing and Storing Recordings

14.1 Retrieval of Images and Recording for Release under the Data Protection Act 1998

Under the Data Protection Act 1998 every person has a legal right to receive copies of information held about them (including images). Therefore, it is essential that all recordings are properly logged in the patient’s medical record. In the case of photographic negatives or transparencies, these must be securely stored and catalogued in the originating department. Master copies and copies that form part of the clinical case notes should be labelled with the patient's name, hospital number and date of recording.

14.2. Processing Outside of the NHS

Wherever feasible, processing and reproduction of photographic recordings should remain within a NHS establishment. If external processing and reproduction services are used, a secure contractual agreement must exist with the service provider, to ensure confidential handling and destruction of waste illustrations.

14.3 Transportation of Images

Carriage of illustrative material must be encrypted and securely packaged and must contain details of the sender's identity.

Material sent by external post should be sent Recorded Delivery, if encryption is not possible.

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References Equality Impact Assessment Communication & Implementation Plan Privacy Impact Assessment (PIA) Appendices

References

"Making and Using Visual and Audio Recordings of Patients". GMC | Making and using audio and visual recordings of patients

"Confidentiality: Protecting and Providing Information" GMC | Confidentiality: Protecting and Providing Information

Equality Impact Assessment

Salisbury NHS Foundation Trust aims to design and implement services and policies that meet the diverse needs of its services, population and workforce, ensuring that none are placed at a disadvantage over others. This document has been assessed against the Trust's Equality Impact assessment Tool. This document has been assessed as not relevant to the duty. A copy of the completed Impact Assessment has been included as Appendix C.

Communication & Implementation Plan

This policy is to be made available to all Trust staff and observed by all members of staff, both clinical and administrative.

To ensure the success of this policy is integrated appropriately within the Trust, the IG Department have developed a Policy Implementation Plan. This is included as Appendix D.

Privacy Impact Assessment

This policy has been assessed against the Trust’s PIA Policy and as no fundamental changes have been made concerning the processing of personal data the IG Manager has determined that a PIA is not required.

Appendices

Appendix

Description

Attachment

A

Quick Reference Consent Flowchart

B

Patient Consent Form

C

Equality Impact Assessment

D

Implementation Plan

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Page Last Updated: 10/11/2015 13:54 
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