Making and using visual and audio recordings of patients

Recordings for use in widely accessible public media – television radio internet print

36

In general, the considerations set out in paragraph 16 and 22 - 23 also apply to recordings for use in widely accessible public media that are intended for a broad public audience; for example, to inform or educate the general public. There are, however, some issues set out below that are specific to recordings used in this context.

16

Disclosures in the public interest may be justified where 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. You must weigh the harms that are likely to arise from nondisclosure of information against the possible harm, both to the patient and to the overall trust between doctors and patients, arising from the release of information. You must make a separate assessment in each case, taking into account the proposed content of the recording, the way in which it will be used, the patient’s rights to respect for their privacy and dignity, and whether making information publicly available is necessary to fulfil the objective.  For further information about disclosures in the public interest see our guidance Confidentiality: good practice in handling patient information.8 

22

Since 1997 our guidance has required doctors to get consent before making recordings that are not part of a patient’s care. However, some doctors hold collections of recordings made over many years that they use solely for teaching purposes within a medical setting. Some pre-1997 recordings in these collections may continue to have a significant value for teaching. In these circumstances, you may continue to use anonymised recordings. You may also continue to use recordings where the patient is identifiable, as long as you have a record that consent was obtained for the recording to be made or used.

23

You must not use recordings for which there is no record of whether consent was obtained where:

  • it is clear from the context that consent had not been given to the recording
  • the patient is, or may be, identifiable.
37

You must get the patient’s consent, which should usually be in writing, to make a recording that will be used in widely accessible public media, whether or not you consider the patient will be identifiable from the recording, other than for the recordings listed in paragraph 10.

10

Consent to make the recordings listed below will be implicit in the consent given to the investigation or treatment, and does not need to be obtained separately.

  • Images of internal organs or structures
  • Images of pathology slides
  • Laparoscopic and endoscopic images
  • Recordings of organ functions
  • Ultrasound images
  • X-rays
38

In some cases you may wish to publish in widely accessible public media a recording of a patient which was made as part of their care, although you did not get consent for this at the time the recording was made. Where this is the case, you must get the patient’s consent if the patient is, or may be, identifiable (see paragraph 15). If the recording is anonymised, it is good practice to seek consent before publishing it. However, if it is not practicable to do so, you may publish the recording, bearing in mind that it may be difficult to ensure that all features of a recording that could identify the patient to any member of the public have been removed.

15

Recordings made as part of the patient’s care form part of the medical record, and should be treated in the same way as written material in terms of security and decisions about disclosures. You must therefore follow the GMC’s guidance in Confidentiality: good practice in handling patient information. You will usually need the patient’s consent before disclosing recordings from which the patient can be identified (see paragraph 17). But disclosures may also be made where they are required by law, directed by the judge or other presiding officer of a court, or can be justified in the public interest.

39

Before making any arrangements for individuals or organisations to record patients, their relatives or their visitors in a healthcare setting or context, you must get agreement from your employing or contracting body, and from the organisation in which the patients are being treated if this is different. Within the NHS, a contract with the filmmaker will normally be required. If in doubt, you should seek advice from your employing or contracting body; for example, from your department of medical illustration or a Caldicott Guardian19  or equivalent.

19

Caldicott Guardians are senior people in the NHS, local authority social care, and partner organisations, who are responsible for protecting the confidentiality of patient information, and for enabling appropriate information sharing.

40

If you are involved in recording patients for broadcast media, you should satisfy yourself that the patients’ consent has been obtained in accordance with this guidance, even if you are not responsible for getting that consent or do not have control of the recording process. The Ofcom Broadcasting Code,20  which covers all UK broadcasters, requires consent to be obtained in a way that is consistent with this guidance.

41

In addition, you should check that patients understand that, once they have agreed to the recording being made for broadcast, they may not be able to stop its subsequent use. If patients wish to restrict the use of material, they should be advised to get agreement in writing from the programme maker and the owners of the recording, before recording begins.

42

You should be particularly vigilant about recordings involving patients who may be vulnerable to intrusions in their privacy and dignity. If you believe that the recording is unduly intrusive or damaging to the patient’s interests, you should raise the issue with the patient and the programme makers, even where the patient has consented to the recording. If you remain concerned, you should withdraw your co-operation.

Children or young people who lack capacity - recordings made for widely accessible public media

43

Where children or young people lack capacity to decide about a recording, you should follow the guidance in paragraph 34.

34

Children or young people under 16 who have the capacity and understanding to give consent for a recording may do so, but you should encourage them to involve their parents in the decision making. If a child or young person lacks capacity to consent to a planned or unplanned recording being made, a person with parental responsibility may consent on their behalf. However, you should stop the recording if the child or young person objects verbally or through their actions, if they show distress in other ways about the recording, or if the person with parental responsibility asks you to stop. For further guidance see 0-18 years: guidance for all doctors and Consent to research.18 

44

You must not participate in making or disclosing recordings of children or young people who lack capacity, where you believe that they may be harmed or distressed by making the recording or by its disclosure or use, even if a person with parental responsibility has given consent.

Adults who lack capacity - recordings for widely accessible public media

45

You must consider as separate issues making recordings of adults who lack capacity, and using or disclosing such recordings. When deciding whether to make a recording for use in widely accessible public media, you must follow the guidance in paragraphs 31 - 32.

31

Where a patient lacks capacity to make a decision, you must act in accordance with the relevant legislation.16  This means that in making any decision about or on behalf of the patient, including making recordings of them for secondary purposes (except in the circumstances in paragraph 33) you should be satisfied that making a recording:

  • is necessary, and benefits the patient or is in their best interests
  • that the purpose cannot be achieved in a way that is less restrictive of the patient’s rights and choices.
32

Where another person has legal authority to decide on the patient’s behalf, they must apply the same principles before giving or refusing consent.

46

Recordings of adult patients who lack capacity that have been made in accordance with the legal requirements set out in paragraph 31 may be disclosed for use in the public media, where this can be justified in the public interest. Where a person has legal authority to act on behalf of the patient, they will need to assess and decide whether disclosure is justified in the public interest. Where no person has legal authority to make this assessment, you must follow the guidance in paragraph 16.

31

Where a patient lacks capacity to make a decision, you must act in accordance with the relevant legislation.16  This means that in making any decision about or on behalf of the patient, including making recordings of them for secondary purposes (except in the circumstances in paragraph 33) you should be satisfied that making a recording:

  • is necessary, and benefits the patient or is in their best interests
  • that the purpose cannot be achieved in a way that is less restrictive of the patient’s rights and choices.
16

Disclosures in the public interest may be justified where 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. You must weigh the harms that are likely to arise from nondisclosure of information against the possible harm, both to the patient and to the overall trust between doctors and patients, arising from the release of information. You must make a separate assessment in each case, taking into account the proposed content of the recording, the way in which it will be used, the patient’s rights to respect for their privacy and dignity, and whether making information publicly available is necessary to fulfil the objective.  For further information about disclosures in the public interest see our guidance Confidentiality: good practice in handling patient information.8