If You go Down to the Woods Today, be Sure of a Big Surprise …

Case history

MDA National’s Medico-Legal Advisory Service was contacted by a JMO Member who had been involved in a JMO picnic day organised through their hospital’s RMO association.

The event had consisted of revelry, several impromptu skits and loads of fun.

The RMO association thought that the picnic day should be informally videoed for posterity and the JMO kindly agreed to do this. A video of the day’s activities was made. Informal consent was obtained from all participants and segments containing footage of anyone who objected were edited out.

It was decided that the best way of sharing the video was to upload it to YouTube.

A segment of the video clearly identified which hospital was involved and a complaint was received anonymously by the hospital. The hospital conducted an investigation and formed the view that the video potentially brought the hospital’s reputation into disrepute. The hospital contacted the JMO as the producer of the video and began disciplinary proceedings.

Medico-legal issues

The main medico-legal issues faced when posting material on YouTube are potential breaches of consent, confidentiality and professional conduct. The material can also raise more general legal concerns such as defamation, copyright violation and plagiarism.

Many of these issues fall within the ambit of the Good Medical Practice: A Code of Conduct for Doctors in Australia (the Code) published by the Medical Board of Australia¹. All medical practitioners should be familiar with the Code as the Medical Board uses them in their role of protecting the public by setting and maintaining standards of medical practice.

• Confidentiality

The Code notes that “Patients have a right to expect that doctors and their staff will hold information about them in confidence, unless release of information is required by law or public interest considerations.” Breaches of confidence are viewed very seriously and can result in disciplinary action and even legal claims.

• Professional responsibility

The Code states that “In professional life, doctors must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical conduct.” As noted by the UK’s Medical Council, “Medical students and doctors are entitled to a private life and to use their time away from studying and work as they wish [but they] should consider whether the images of what was fun at the time could cause embarrassment if they were accessed by patients or the public, later. In extreme cases such images could lead to a complaint being made.”

• Cultural sensitivity

The Code notes that a practitioner should have “knowledge of, respect for, and sensitivity towards, the cultural needs of the community you serve.”

• Hospital policies

A hospital is likely to have an employee “Code of Conduct”. Release of material (particularly where the hospital is identifiable or the material brings the hospital into disrepute) may breach this code and can result in internal disciplinary proceedings, including dismissal. In the above matter the material was seen as a breach of a hospital’s policy on not providing public comment on political and social issues because of potential confusion about whether the material was presented in an official capacity.

Risk management strategies²

• Be aware of the potential medico-legal risks of using social media such as YouTube.
• Appreciate that inappropriate online activities can be detrimental to your patients, colleagues, training, employment prospects and personal integrity.
• Use common sense and discretion when uploading videos.
• Be careful not to breach patient confidentiality of professional standards.
• Remember that the information you upload may be difficult to permanently delete.

YouTube videos can easily be removed by the person who posted the material. Third parties can request material be removed that violates their privacy at http://support.google.com/youtube/bin/request.py?&contact_type=abuse.³

Conclusion

1  On removal of the video, the hospital took no further action
2  www.medicalboard.gov.au
3  http://support.google.com/youtube/bin/answer.py?hl=en&hlrm=en&answer=142443

The case histories are based on actual medical negligence claims or medico-legal referrals; however, were necessary certain facts have been omitted or changed by the author to ensure anonymity of the parties involved.