Making and using visual and audio recordings of patients
Recordings made for research teaching training and other healthcare related purposes
Existing collections used for teaching and training
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.
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.
Adults with capacity - making recordings for secondary purposes
You must get consent before making recordings for teaching, training, the assessment of healthcare professionals and students, research or other healthcare-related purposes. It is good practice to get the patient’s written consent, but if this is not practicable, the patient’s oral consent should be obtained. Written consent or a record of oral consent should be stored with the recording.
Recordings will vary from simple photographs to visual and audio recordings of consultations involving discussion of personal and emotional issues. The amount of information you should provide before seeking consent will vary according to the nature of the recording, what it will be used for, and the concerns of the individual patient. Before making the recording, you should explain:
- the purpose of the recording and how it will be used
- how long the recording will be kept and how it will be stored
- that patients may withhold consent, or withdraw consent during or immediately after the recording, and this will not affect the quality of care they receive or their relationship with those providing care.
You should give this information to patients in a way they can understand. You must answer any questions patients ask as honestly and as fully as you can. You should provide any additional support patients need to understand this information, to communicate their wishes or to make a decision. Further advice is available in Consent: patients and doctors making decisions together.14
In some cases, although no recording has been planned, a recording of an unexpected development during treatment or an investigation would make a valuable educational tool (an unplanned recording). Where the patient has capacity to consent, you should seek their agreement to make the recording. You should stop the recording if the patient asks you to do so. You must not make recordings for secondary purposes without consent or other legal authorisation.
You must assess the patient’s capacity to make a particular decision at the time it needs to be made. You must not assume that because a patient lacks capacity to make some decisions, they lack capacity to make any decisions at all, or will not be able to make the decision in the future. For example, some patients may not have capacity to weigh risks and benefits of significant treatments, but may be able to make decisions about whether to allow a recording of themselves to be made.
Before deciding whether patients have capacity to make a decision, you must take all practical and appropriate steps to enable them to make the decision for themselves; for example, by using simple language or visual aids, or by involving a carer or family member.
Further advice on maximising a patient’s ability to make decisions and assessing capacity is set out in Consent: patients and doctors making decisions together.15
Adults with capacity - making recordings for secondary purposes
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.
See endnote 11 for a summary of the law.
Where another person has legal authority to decide on the patient’s behalf, they must apply the same principles before giving or refusing consent.
The law provides some exemptions from these principles to enable adults who lack capacity to be involved in research; and recordings may form part of such research. For further advice about involving adults who lack capacity in research see our guidance Consent to research.17
Children or young people - making recordings for secondary purposes
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
Advice on involving children or young people in research is set out in paragraphs 36-40 of 0-18 years: guidance for all doctors.
Guidance on the particular considerations in relation to seeking and acting on consent for children or young people to participate in research is set out in paragraphs 14-20 of Consent to research.
When a child or young person has developed the maturity to make decisions about recordings for themselves, you should use any opportunity that arises to offer them the option to withdraw or vary consent previously given by a person with parental responsibility, if:
- the child or young person is or may be identifiable from the recording
- it is reasonably practicable to act in accordance with the child or young person’s wishes.