Photographs, x-rays, medical images and privacy

In our current digital era, we have increasing access to instant, easy recording of images through mobile phones, as well as other digital media. The medical field is no exception. It is therefore important to recognise that there is no general right for medical practitioners to use patient photographs, x-rays or other medical images, whether for education, research or otherwise.

Current privacy legislation introduces a set of ten National Privacy Principles, which establish the minimum standards for handling of personal information. Clinicians may be liable for fines of up to $100 000 if they store or distribute clinical photos incorrectly. A medical practitioner can only use or disclose health information for the purpose for which it was collected, unless the individual’s consent has been obtained – and not doing so may have serious consequences. (Recent research undertaken at a Melbourne hospital* found that only a quarter of doctors surveyed had obtained appropriate patient permission to obtain clinical images.)

Use of clinical images for other purposes, such as education, without consent from a patient not only works against a sense of confidentiality for the patient, but may also have severe legal ramifications. Several recent cases illustrate this:

• An investigation has been carried out in Western Australia in relation to breach of patient confidentiality, after a newspaper published a photograph, obtained from a hospital’s internal website, of a patient being treated at that hospital.
• A chief resident of general surgery at a US hospital faces disciplinary proceedings after taking photos of a patient’s tattoo, using his mobile phone.
• An apocryphal story tells the tale of a surgeon who objected, when his colleague included x-rays in his PowerPoint®
• presentation at an educational conference, that used x-rays of the first surgeon without his consent. The surgeon giving the presentation was the treating surgeon.

Property of medical imagery is different to that of normal documents – the right of ownership of these images is also accompanied by a duty of confidence. Taking or recording an image does not necessarily mean ownership of the image either – in the public sector these photographs may become both the property and responsibility of the hospital.

These obligations are not necessarily new. Doctors have always had an obligation to maintain confidentiality in relation to patients and patient information. A breach of privacy or confidentiality can also lead to a complaint of professional misconduct, and potential disciplinary proceedings before medical boards and authorities.

Photographs and other medical imagery can be used for many useful purposes, and are included in patient records as an addition to clinical care – and may be displayed to colleagues, trainees and others for treatment purposes. However, any use beyond the treatment of the patient runs the risk of a breach of privacy.A breach of privacy or confidentiality can lead to a complaint of professional misconduct, and potential disciplinary proceedings before medical boards and authorities.

As technology improves into the future, clinical photography will also increase. It is important to be aware of the ramifications and consequences of using this imagery – and mobile apps such as the recently released PicSafe aim to guide medical practitioners in the safe usage and storage of such files.

It is also crucial to remember to gain the patient’s consent before the images are used. The patient’s consent should be recorded, and what the images will be used or potentially used for should be discussed with the patient. It is also acceptable under privacy legislation for a medical practitioner to have a Privacy Statement or privacy consent document (either signed by or given to the patient) that indicates that images may be used for research, training and education purposes – and allowing the patient to ‘opt out’ from this by indicating that such permission is not given. Practitioners operating in hospital environments should check their hospital’s Privacy Statement or consent document to determine the extent of consent encompassed within these documents.

(*Research conducted by Dr David Hunter-Smith in the Department of Surgery at Peninsula Health found that only a quarter of doctors surveyed had obtained appropriate patient consent to take clinical images.)

This article first appeared in Surgical News Vol 13 No 2 March 2013 p27. Reproduced with permission.