The rapid development of recording and communication technologies has had a profound impact on the confidentiality of patient information and patient identity.
But electronic transmission of data is still not totally secure or foolproof and patients need to know that it may not be possible to send their data safely through these media.
Video and audio recordings
You need a patient's consent if you intend to take any visual images (video or photographs, for example) or make audio recordings of them. It is important that the recordings do not compromise the patient's privacy or dignity and are only used for the purpose for which consent was granted. They must also be stored securely.
Your patient must give their consent freely, without any undue pressure or coercion. When seeking consent, you should make clear what, if any, secondary uses the recordings will have, such as education, and that the recordings will be anonymised or coded for this purpose. Make a careful note of the discussion in the patient's notes.
Recordings made for clinical purposes are part of the clinical records, and subject to the same duty of confidentiality. Clinical recordings should not be used for teaching purposes without consent if the patient is identifiable. This requirement does not extend to other media such as anonymised pathology slides or X-rays.
Recordings for teaching purposes made since 1997 require consent from the patient. Recordings for teaching purposes made before 1997 may not have been made with appropriate consent and should only be used if patients are not identifiable. Doctors with old recordings of this nature are advised to replace them with new recordings made with the patient's consent.
Emails, faxes and internet chatrooms
Information should be sent and received securely. Emails, including email appointment systems, may not be a secure form of communication. You should make your email system as safe and confidential as you can, and anonymise and encrypt data if possible. You may wish to consider other means of communication if you have to transmit sensitive patient information to other medical practitioners.
Confidential faxes should utilise 'safe haven' systems. A safe haven is either a secure location or an agreed set of administrative arrangements in place within an organisation to ensure the safe and secure communication of confidential information.
Internet forums and chatrooms are increasingly popular. Whilst professional social media sites and closed forums can be useful places to exchange thoughts on current practice, you must be careful not to breach patient confidentiality by discussing specific cases. Although individual pieces of information may not be sufficient to identify a patient, the sum of information could be enough to identify a patient or someone close to them. Additionally, it is possible that information could be copied and published elsewhere without your consent.
Medical advice lines
Calls by patients to medical advice lines or similar services are potentially sensitive and callers need to know that their call may be recorded. No call from a patient should be secretly recorded. You are advised to be cautious when considering taking part in this type of activity and to call the MDU for guidance.
Television, radio, internet and print
There are additional issues to consider when seeking patient consent to recordings for broadcast or in other media to which the public will have access.
A patient's written permission is required for all recordings for use in publicly accessible media, including medical journals. This applies whether or not you consider the patient is likely to be identifiable.
The position is slightly different if the patient has died. Some information may be published, depending on whether:
- the information is already in the public domain
- the information can be anonymised
- the patient gave consent before death or not.
Before making any arrangements for individuals or organisations to film patients in a healthcare setting, you need to inform your employing or contracting body, and the organisation in which 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.
When a patient is to be recorded for television or other public media, you should ascertain that the patient has properly given his or her consent, even if you are not personally responsible for obtaining it.
When seeking the patient's consent you will need to consider their vulnerability and whether they might wish to withhold consent but are reluctant to do so for fear of upsetting their treating doctor.
A patient who has agreed to the recording may also want to control how the recording is used. He or she will need to get agreement on future use in writing from the owners of the recording before recording begins.
Special consideration should be given to patients who are unable to give permission themselves. Have the programme-makers taken sufficient account of the patient's interests, wellbeing, privacy and dignity? If you have concerns about any of these issues, you may wish to stop recording and consider withholding co-operation.
If you are in any doubt about the medicolegal position on confidentiality relating to photographic, recording or computer technology or dealing with the media, please call the MDU for advice.
Responding to the press
Personal criticism in the press or on social media can be very distressing, particularly if the comments are made by a patient or their representative. However, this does not remove your duty of confidentiality to the patient, and you must not put confidential patient information into the public domain. It may constitute a breach of confidentiality even to confirm or deny information and therefore considerable caution needs to be exercised when dealing with journalists.
If you are approached by the media for information about a patient-related matter then contact the MDU press office for further advice.
See also our quick guides on dealing with the media and dealing with online criticism.
Images for public display
Recordings originally obtained with the patient's consent may be displayed in public without further consent provided that the recordings are effectively anonymised. This includes photographs of images from pathology slides, x-rays, laparoscopic or ultrasound images or images of internal organs. However, where the patient has an unusual condition or presentation which might identify him or her, it is good practice to seek the patient's consent first prior to publishing.
Questions and answers
I've just had a call from a journalist asking me to confirm that a patient still has health problems as a result of inhaling smoke in a house fire. Apparently the patient is in dispute with the local council about rehousing. His asthma has been worse since the fire, and I want to help him if I can. What should I tell the journalist?
The law and the GMC are clear about a doctor's duty of confidentiality, even where the patient has put the information into the public arena. The GMC says: 'Patients have a right to expect that information about them will be held in confidence by their doctors'. This is so even if a patient puts his medical details into the public domain.
Simply to confirm that the man is a patient of yours may in itself breach confidentiality. Even if you gained the patient's consent to talk to the journalist, you may inadvertently reveal details that the patient did not consent to being released. If you decide to go ahead, you will need to obtain your patient's consent. You will need to satisfy yourself that the patient understands what you are going to say and you may only discuss aspects of the patient's condition for which you have consent.
You may prefer to explain that you are unable to comment because your duty of confidentiality to all your patients prevents you from even confirming or denying that a person is a patient of yours. The MDU's press office can help you with your response.
I have been asked to take part in an online question and answer session about my specialist area, paediatrics. This has been set up by a local community group and I really want to help out.
If you are responding to individual letters you need to consider that you may be creating a duty of care for patients whom you have not seen or examined, in a situation where you may not have had all of the information necessary to form a clinical judgment.
If you provide only general advice, it may still be relied upon by patients and you should ensure the website includes a note stating that the medical advice you are providing is only general advice and that it should not be used as a substitute for the advice patients receive on consulting their own doctor. You may still be called upon to justify the accuracy of any advice you give.
An important consideration is that of patient confidentiality. The GMC makes it clear that you are expected to obtain express consent from patients before publishing personal information about them, whether or not you believe the patient can be identified. You will need to tell the patient exactly what you plan to publish in terms of case histories or other information such as X-rays or photographs and to respect their wishes if they do not give permission.
Also, registration with the GMC does not give you the right to practise medicine overseas. If you provide online advice to someone based overseas, you could be seen to be practising medicine in whatever place the person was when they asked you the question. If so you might need to be registered in that country. You would also need to be sure you had appropriate indemnity cover and complied with any relevant legislation, for example in relation to prescribing. It may be helpful to ask those submitting questions to tick a box confirming that they are based in the UK.
Last year, I filmed a consultation with a patient to use in teaching medical students. I now want to use this in a study day for non-medical healthcare workers, which will mean the video is seen by a wider audience than the patient may have originally thought.
Can I rely on the patient's original consent given that the video will still be used for teaching?
As you are aware, an audio-visual recording of a patient which identifies them may only be made with the patient's informed consent or the parent/guardian's authority in the case of a minor. To give consent, the patient must be aware of the purposes of the recording, the uses to which it may then be put and the extent to which the recording will be broadcast. The recording may only be used for the purpose and to the extent to which the patient consented. If you believe that the patient's original consent might not encompass the way you are now intending to show the video, you should discuss it with them and get their express consent for the video to be shown under these new circumstances. You must respect a refusal to give consent.
Is it acceptable to leave voicemail messages for patients?
Because of your duty of confidentiality to your patients you need to ask yourself if you can guarantee that any message you leave for a patient will remain confidential, assuming it even reaches them. There may be occasions when a patient has said they are happy with this method of communication but, apart from that, you would need to consider whether it would be appropriate to leave a message. You may not be certain that you have dialled the correct number and, even if you recognise the voice on the answer phone, you may not know whether somebody else could access the message. You would also need to consider if there was a better way of passing on the information that gave less scope for a breach of confidentiality. If you did decide to go ahead, you would also need to have mechanisms to follow up the patient appropriately, for example if they did not make an appointment as requested because for some reason they did not pick up the message.
This guidance was correct at publication 15/08/2018. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.