An article for physicians by physicians
Originally published March 2011
In today's digital world, obtaining clinical photographs and videos is increasingly easy, common, and valuable. These are generally used to document the presence and progression of disease, and to educate health providers and patients. However, given the right to confidentiality of personal health information, unless there has been previous discussion, patients may not expect their clinical photographs or video will be used for anything other than treating and documenting their medical conditions.
Risk management recommendations
The following recommendations are based on privacy legislation and the CMPA's experience:
- Obtain express consent from patients to use clinical photographs and videos for educational or promotional purposes.
- If the consent is provided verbally, document the discussion in the patient's medical record.
- As a precaution, ask the patient to sign a written consent form [PDF], particularly if the photographs or videos are to be used for promotional purposes.
- Remove any personal identifiers to protect patient confidentiality.
Physicians practising in a hospital or institution should be aware of the organization's policies or procedures for taking photographs and videos.
- Physicians' obligations: Physicians have both an ethical and legal obligation to keep their patients' personal health information confidential.
- Consent requirements: Implied versus express consent.
- Case examples: The following cases illustrate some of the potential medico-legal risks with using clinical photographs and video.
Patients' photographs or videos should be treated as their personal health information. This is especially so if these depict sensitive or private parts of the body or include items that could identify the patient, such as a birthmark, a ring, the face, or a unique anatomical feature.
Implied versus express consent
A patient's implied consent is sufficient when you are collecting, using or disclosing an individual's personal health information to provide health care within the circle of care, for example to monitor disease, for surveillance of nevi, etc.
However, a patient's express consent must generally be obtained when you share his or her personal information for purposes other than providing health care. It would be judicious to talk with a patient in advance about photos that may be taken and how they will be used and protected. Given the recent strengthening of Canadian privacy legislation, it would be wise to obtain the patient's express consent at the time the photographs or videos are shot. Express written consent must also be obtained for photographs or videos that will be used for promotional purposes.
What should be included in the informed consent discussion for the use of photographs and video for educational purposes?
If you intend to use clinical photographs or videos of a patient, particularly for educational reasons, you should consider discussing the following with the patient:
- the reasons for taking the photographs or video
- what will be photographed or recorded, for example, what anatomy or aspect of the disease
- whether the patient will be identifiable
- the possible purposes or applications
- who may be authorized to access the photographs or video, and in what context
- the patient's right to refuse, withdraw, or modify consent
Patients should not feel pressured and the discussion should be documented in the patient's medical record.
Does public access to the educational program affect the need for express consent?
It is important to advise patients who will likely have authorized access to the photographs or videos, and where they may be published. For example, patients should be advised if these will be published on the Internet. Keep in mind that more and more academic journals are accessible on the Internet, and educational programs are often delivered via webcast.
Be alert to any personal identifiers
When patients consent to the use of their anonymous photograph or video for educational purposes, you should remove any personal identifiers to protect patient confidentiality. You will want to remove the patient's name (including any identifying data attached to the digital photograph or video, such as the name used to save the electronic file) and other identifying information (such as age, gender, patient history, etc.).
Is written authorization in the form of a witnessed, signed consent form required?
Most provincial and territorial privacy legislation does not define how express consent must be obtained, but at least one province requires it to be in writing. You may decide to request that patients complete a written authorization form. You may consider using and customizing a sample consent form [PDF] for use in your practice.
It is important to emphasize that a consent form alone does not constitute the consent of the patient. You should ask the patient to complete the form only after you have a discussion about the type of photographs or video recording that will be taken and how these will be used, and the patient agrees to the use and disclosure of these for the specified purposes.
The consent form should include the range of possible uses. For example, it should detail the nature of the photographs or videos and list the intended purposes for their subsequent use and disclosure.
When obtaining express consent, oral or written, you should place a note about the consent discussion in the patient's medical record. If you have obtained a signed consent form, a copy of this should also go into the medical record.
Is it possible to use photographs or videos obtained before the enactment of current privacy legislation?
It may be difficult, if not impossible, to obtain express consent to use clinical photographs of patients that were taken many years ago. The provincial and territorial privacy legislation does not necessarily prohibit the continued use of such non-identifying clinical photographs. However, if there is a reasonable possibility that a patient could be identified, you should refrain from using the photographs unless express consent can be obtained from the patient (or the legal representative if the patient is deceased or mentally incapacitated).
Research trial case
A 34-year-old woman with allergies and asthma responded to a newspaper advertisement to enter a research trial for a new medication. She was evaluated by the physician-researcher and agreed, as part of the research, to participate in an educational video. The video later aired on national television.
The patient began a legal action alleging lack of informed consent. She had expected the video would be used to teach health providers and would not be released to the public. The consent form did not specify the audience.
In the end, the woman did not pursue the litigation.
Journal article case
A patient agreed to have a clinical photograph taken to illustrate the surgical approach being used to treat her breast cancer. Her face was visible in the photograph as was the surgical scar on her chest.
The surgeon was approached by a journalist who wanted to write an article on breast cancer for a medical journal. A few medical photographs were given to the journalist with the understanding that the eyes of the patients would be hidden to preserve anonymity. This patient's photograph was published in the medical journal with black rectangles over her eyes.
The photograph was never returned to the surgeon. Four years later, it was published in another academic journal but without the black rectangles. The patient was clearly identifiable.
A settlement was paid to the patient by the CMPA on behalf of the member with an equal contribution from the publisher of the journal.
Public brochure case
A 36-year-old businesswoman had an exceptionally good result from an aesthetic facial procedure. The patient gave verbal consent to her physician to use her before and after photographs but only in specific contexts (i.e., for scientific purposes, or in research or educational presentations). This verbal consent was not documented.
The physician gave the photographs to a colleague in the clinic but failed to clarify the limitations on their use. Subsequently the patient learned her photographs were being used in a brochure for the public.
The patient commenced a legal action. A settlement was paid to the patient by the CMPA on behalf of the member physician.