Peril of the Picture

Case history 1

The intern was subsequently asked to attend a meeting with the director of Clinical Services, during which he was informed that a nurse had complained about him taking photos in the OR. The intern explained that preoperatively he had asked the patient if he could take pre and postoperative photos of the lesion for therapeutic and teaching purposes. The intern explained that the patient was happy for photos to be taken, but conceded that he had not recorded this in the clinical notes or asked the patient to sign a “Consent to Photographs” form.

Case history 2

An elderly patient was undergoing cardiac surgery. At the conclusion of the operation, the patient arrested and CPR was commenced, including internal cardiac compressions. A junior nurse filmed the resuscitation on her iPhone and posted the footage on Facebook. Although the patient was not identifiable, the nurse tagged the name of the hospital in her status “Guess what happened at work today?” A colleague, who was one of the nurse’s Facebook friends, saw the footage and reported it to management. The nurse’s employment was terminated.

Lessons learned

• Each member of the healthcare team must take every step to maintain confidentiality and protect a patient’s privacy.

Even if a patient cannot be identified in a photo or video, the patient’s consent must still be sought prior to taking photos or film.

• If the patient consents to photos and/or footage being taken, this should be clearly documented and the scope of any such consent recorded.

Many hospitals have specific forms for this purpose that have tick boxes or spaces for the patient to write his or her initials next to the various potential uses they consent to e.g. photos being kept in the clinical notes for wound review and care planning, educational purposes or for publication in medical journals. If the hospital does not have a specific form, you need to record your discussion with the patient in the clinical notes and be careful to note precisely what use(s) of the photos/footage the patient consents to. For instance, a patient might be happy for the photos to be kept in their clinical notes but not agree for the photos being used for teaching purposes.

• If in doubt, ask.

Want to know more about patient confidentiality and consent? Contact our 24/7 Medico-legal Advisory Service on 1800 011 255 or email advice@mdanational.com.au.

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.