Recordings made when the patient was alive
The duty of confidentiality continues after a patient has died. Guidance on disclosures after a patient’s death is included in Confidentiality: good practice in handling patient information.21 You should follow a patient’s known wishes after their death. For example, if a recording was made with the patient’s consent for a specific purpose, such as research or training, or for broadcast in a documentary, you may use the recording in accordance with the patient’s consent where you have no reason to believe that consent was withdrawn before they died. You may use anonymous recordings made when the patient was alive (see paragraph 17).
You may disclose anonymised or coded recordings for use in research, teaching or training, or other healthcare-related purposes without consent. In deciding whether a recording is anonymised, you should bear in mind that apparently insignificant details may still be capable of identifying the patient. You should be particularly careful about the anonymity of such recordings before using or publishing them without consent in journals and other learning materials, whether they are printed or in an electronic format.
However, if the recordings will be in the public domain or the patient is identifiable, you will need to consider whether the patient’s family should be consulted; for example, if a recording includes information about a genetic condition, or other information about the patient’s family. Where this is the case you should seek legal advice from your employing or contracting body, or from your medical defence organisation.22
Post-mortem examinations are governed by legislation in the UK.23 You should ensure that you comply with the law and follow any relevant code of practice.
The Human Tissue Act 2004 provides the framework for the regulation of human tissue in England, Wales and Northern Ireland. Scotland has its own Human Tissue (Scotland) Act 2006. The Human Tissue Authority publishes the Code of Practice 3 – Post mortem examinations (2009) and the Code of Practice 1 – Consent (2009).
Recordings may form an integral part of a postmortem examination and separate consent is not needed for making recordings of organs, body parts, or pathology slides to assist in the determination of the cause of death. However, information for relatives about the post-mortem examination should include an explanation of why a recording may need to be made.
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.
You do not need consent to use recordings for secondary purposes provided that the recordings are anonymised before use; for guidance on recordings of deceased patients that may be published in the public domain, see paragraph 48.
For coroner’s post-mortem examinations, you should check with the coroner or Procurator Fiscal before taking images of tissue during a post-mortem examination for purposes other than those authorised by the coroner or Procurator Fiscal.