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Technology now makes it possible to record nearly every aspect of our daily lives. But what about situations when we traditionally expect privacy? MDU adviser Dr Udvitha Nandasoma examines the law and ethics of recording in a medical setting.
A life on camera used to be the glamorous preserve of celebrities. No longer. There are now up to 5.9million CCTV cameras recording public life in Britain, including 750,000 in "sensitive locations" such as hospitals and care homes.
For anyone who wants to capture the world around them, from 'life loggers' to citizen journalists, the technology is increasingly accessible, portable and convenient. The latest innovation is Google Glass, a wearable hands-free computer that has been trialled in medical applications, including live-streaming operations as a teaching aid for medical students.
There has been growing debate about the value of using cameras to capture interactions between members of the public and those in positions of power or authority, including the police and healthcare workers. In October 2013 for example, the Care Quality Commission's Chief Inspector of Adult Social Care, Andrea Sutcliffe, called for a debate on the deployment of cameras to monitor care homes. While agreeing that improving care was a "top priority", Caroline Abrahams of Age UK commented to the Daily Telegraph: "Every older person has a right to privacy and dignity and as most people receiving care need help with intimate personal tasks ... any use of cameras must be fully justifiable and take these issues into account."
The presence of cameras in healthcare settings always raises similar privacy concerns. For doctors, the overriding need to maintain confidentiality and preserve a relationship of trust with patients means you cannot afford to ignore the legal and ethical obligations of introducing cameras.
The most common reason for hospitals and private clinics to install cameras in public areas is to help prevent or detect crime. But even here you need to be confident that CCTV is a necessary and proportionate response, record your reasons and regularly review this decision.
CCTV images of patients are considered sensitive personal data which means you must abide by the Data Protection Act 1998 and follow the relevant national guidance. In June 2013, the government published a Surveillance camera code of practice under the Protection of Freedoms Act 2012. The Code currently applies to local authorities and the police in England and Wales, but other users of surveillance camera systems are encouraged to adopt it voluntarily.
It is intended to be used alongside the detailed CCTV Code of Practice published by the Information Commissioner's Office (ICO) in 2008. This says that CCTV should only be installed for a specific purpose such as crime prevention; signs should be prominently displayed which clearly warn visitors and staff that surveillance equipment has been installed; and recorded images should be stored securely and not be retained for longer than strictly necessary.
If you need to disclose CCTV footage to the police you must comply with the GMC's guidance Confidentiality (2009) which states that personal information may be disclosed in the public interest without consent "if the benefits to an individual or to society of the disclosure outweigh both the public and the patient's interest in keeping the information confidential". Doctors are expected to balance the likely harm that might arise from non-disclosure of information against the possible harm to the patient from disclosing it. You should also consider the effect on your relationship with the patient of doing so.
If you are considering disclosure in the public interest, consent should be sought, unless it is not practicable to obtain, especially if that would undermine the purpose of the disclosure, such as investigation of a serious crime. We advise you to consider every disclosure decision on its own merits, and to check with one of our advisers if you are unsure.
It's important to ensure the cameras fulfil your intended purpose so seek professional advice about the most appropriate surveillance technology, the location of cameras, facial recognition, time/date stamps etc. Ensure any contract includes guarantees about data security and patient confidentiality.
For doctors, the overriding need to maintain confidentiality and preserve a relationship of trust with patients means you cannot afford to ignore the legal and ethical obligations of introducing cameras.
We also recommend asking your data controller to produce a CCTV policy covering the installation of cameras, the safe storage of images, retention periods, disclosure and what to do if a person requests any footage you have recorded of them by making a subject access request.
While CCTV in public areas is commonplace, actually recording consultations or treatment is still relatively rare, not least because it presents significant ethical difficulties.
In Making and using visual and audio recordings of patients (2011), the GMC distinguishes between recordings made as part of patient care and those made for secondary purposes such as teaching or research.
You are expected to obtain patients' specific consent to make a recording that forms part of your investigation or treatment of a condition or contributes to a patient's care. There are some exceptions to this requirement for specific consent. These include where the images are of internal organs and structures and where taking images is an integral part of the procedure, such as x-rays, ultrasound or endoscopic images. It is important that you make sure patients understand the purpose of the recording, what form the recording will take, the arrangements for secure storage, and (where practicable) any possible secondary uses in anonymised or coded form.
Consent must always be sought, ideally in writing, before making new recordings for secondary purposes such as teaching or research. You should explain to your patient that they can withhold or withdraw consent at any time without any implications for their care. The requirement to obtain the patient's express consent remains even if you consider that you will use the images in a manner that means that the patient will not be identifiable.
Covert recordings can only be made in exceptional circumstances with appropriate legal authorisation "where there is no other way of obtaining information which is necessary to investigate or prosecute a serious crime or to protect someone from serious harm". There are also specific legislative requirements that can apply to the making of covert recordings and any practitioner considering taking this step is encouraged to speak with their employing body and the MDU.
Any recording you make should be considered part of the patient's records. This means you may be ordered to disclose it in the event of a complaint, claim or some other formal investigation and that patients have a right to make a subject access request under the Data Protection Act 1998. The ICO and the Care Quality Commission (CQC) expect organisations to have a consistent approach to subject access requests from patients or their representatives, including your charges for an electronic copy (a maximum of £10). The ICO has recently published a code of practice on this subject but you can also contact the MDU advice line if you have specific concerns.
As we have seen, there are regulations and ethical considerations concerning the use of cameras by doctors but with the proliferation of smartphones and digital cameras, patients themselves increasingly have the means to record consultations. Some may do so surreptitiously, which can be a disquieting experience.
But while the prospect of a patient recording you may be disturbing, it may also be to your advantage. It has been estimated that patients immediately forget between 40% and 80% of the medical information provided by their doctor and almost half the information they do recall is incorrect. Even if patients try to take notes, they might not be able to take down everything accurately. They may be too busy writing to ask questions or get the reassurance they may need.
Consultant urologist Christoper Eden had no objection to a patient recording a consultation on his smartphone. He recalled: "I was discussing the ramifications of various surgical options. There were facts, figures and side-effects to digest. By filming me, it meant [the patient] could do this in the comfort of his own home and weigh up the options at his own pace."
It's also worth bearing in mind that the GMC expects you to "give patients the information they want or need to know in a way they can understand. You should make sure that arrangements are made, wherever possible, to meet patients' language and communication needs" (paragraph 32, Good medical practice, 2013).
Of course, you would generally expect patients to ask before unleashing their smartphone. However, it may surprise you that patients do not need their doctor's permission to record a consultation provided that the recording is for their personal use only.
If you suspect that a patient is covertly recording, you may be upset by the intrusion but it would not normally justify refusing to treat the patient. And remember that if you refuse to continue with the consultation, this might be caught on camera too.
If you are concerned that the patient's actions are a sign that they do not trust you, you may want to discuss this with them openly.
A more pragmatic (and disarming) response might be invite the patient to record the consultation openly and ask them whether you can have a copy of the recording which can then become part of the patient's own medical records.
In seeking their consent to this you should reassure them that the recording will be stored securely by the practice and only used for this purpose.
Finally, be aware that recordings of consultations, even those made covertly, have been admitted as evidence of wrongdoing by the GMC and in court. However, they can also prove that the doctor has acted ethically and professionally.
This article originally appeared in the April 2014 MDU journal entitled "Under surveillance"
This page was correct at publication on . Any guidance 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.