The GMC identifies six categories of recordings for which consent to make the recordings is 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 or organ functions
- Ultrasound images
It is, however, clearly good practice to tell patients that images are being made as part of their care or treatment.
When these images are anonymous, the GMC advises that that they may be disclosed for use in research, teaching, training, or other healthcare-related purposes, without consent, although doctors should, where practicable, explain that such recordings may be used in anonymised form for secondary purposes. Of course, these images, when used in connection with a case history could make a patient identifiable, and would, therefore require permission.
The making of other recordings and images which contribute to patient care, and which fall outside the list above, generally require express patient consent. The GMC advises that, where practicable, doctors should explain any possible secondary uses of the recording in an anonymised form when seeking consent to make the recording. This discussion should be recorded in the patient’s medical record.
The images and recordings in the list above are, when presented alone, intrinsically anonymous. Other images or recordings may be anonymised by removing identifying details. Anonymisation must be effective; simply putting a bar across a patient’s eyes would not be sufficient, for example. The GMC advises that, when deciding whether a recording is anonymous, doctors should bear in mind that apparently insignificant details may still be capable of identifying the patient. Extreme care should be taken about the anonymity of such recordings before using or publishing them without consent in journals or other learning materials. The British Medical Journal publishes a patient consent form for use wherever a patient might be identifiable from a case report, illustration or paper published in the journal.
The GMC draws a distinction between the use of these types of recordings for healthcare-related purposes such as teaching and research and the publication of images in media which are intended for a broad public audience and which are widely accessible to the public – such recordings are discussed below.
Adult patients who lack capacity
Where adults lack the capacity to consent to an identifiable recording for assessment and treatment purposes, agreement should be sought from someone with the lawful authority to consent on their behalf. Where no individual has legal authority to make the decision on a patient’s behalf, it may be in the patient’s best interests to discuss the making of the recording with family or friends close to the patient. Where there are no family members or friends available or willing to be involved in such a discussion or where treatment must be provided immediately, recordings may still be made where they form an integral part of an investigation or treatment in accordance with relevant legislation or common law.
Where a recording has already been made as part of the patient’s care, but may also be of value for a secondary purpose, the GMC advises that the recording should be anonymised wherever that is practicable and will serve the purpose. (Recordings for use in widely accessible public media are distinct from other secondary purposes and are discussed below). In relation to identifiable recordings used for secondary purposes the law in relation to adults lacking capacity is untested. In the BMA’s view it is difficult to see how such a decision could be in the individual’s best interests. Legal advice should be sought on a case-by-case basis for the use of identifiable recordings for reasons other than treatment and research. Involving incapacitated adults in research is dealt with in separate guidance material.
Children or young people
Parents usually authorise recordings of their young children, while competent young people choose for themselves. The same advice for adults with capacity on use and disclosure of recordings made as part of care also applies to children and young people.