As the GMC launched its new guidance* on making audio and visual recordings of patients, the MDU, the UK's leading medical defence organisation, revealed it opened nearly 60 files in the last two years after doctors sought advice about the ethics of recording patients.

The cases included:

- GP practices seeking advice on whether they can routinely record telephone calls.

- Ten doctors who had been asked to take part in television documentaries in which their consultations would be filmed and were worried about the implications for patients.

- Specialists who wished to use clinical images for teaching purposes and in research papers.

- Doctors seeking advice because their patients wished to record a consultation.

- Allegations that patients have been photographed or recorded or that identifiable images have been published without their consent, including on social networking sites.

Dr Sally Old, MDU medico-legal adviser, said: "As diagnostic tools become more advanced, doctors increasingly need to make recordings, such as ultrasound images, as part of patient care. Additionally, sometimes recordings may not directly benefit the patient but may be important for clinical research, teaching and even to raise public awareness.

"The GMC's new guidance is helpful as it clarifies when to seek specific consent from patients to make and publish recordings and expands on the previous guidance to cover recorded material from deceased patients, children and the rare situations in which covert recordings can be made to detect a serious crime or protect someone from harm. The expanded section on recordings for use in the mass media is also particularly relevant given the sheer number of news articles and television documentaries about health and medicine, many of which include footage of patients being examined and treated."

The MDU has published the following advice for members based on the key points of the GMC's new guidance:

- When seeking specific consent to record patients as part of their care, explain why it is needed, how it may be used and stored and that it may be used in anonymised form for teaching, research or other healthcare purposes (secondary purposes) without their further consent. Make a note of the discussion in the patient's records.

- Specific consent is not necessary to record certain clinical images such as x-rays and images of pathology slides but doctors should explain to patients, where practical, what is involved when seeking consent for the examination, including that this recording may be used in anonymised form for other healthcare purposes such as teaching.

- Guard against improper disclosure of recordings made as part of patient care in the same way as medical records.

- If patients lack capacity, you must obtain consent from someone with legal authority for recordings which form part of clinical care. For other recordings, you and the person with legal authority should be satisfied the recording is necessary, in the patient's best interests and that the purpose cannot be achieved another way. There are some exceptions, such as for clinical research, and doctors should seek further advice in these circumstances.

- Children with the necessary maturity and understanding can usually consent to recordings as part of their care or for secondary reasons but you should encourage them to involve their parents. Otherwise, you should obtain authority from the person with parental responsibility but you may need to check whether recordings can be used for secondary purposes as young patients mature and attain the capacity to consent themselves. Be prepared to stop recording if a child shows any signs of distress.

- Specific consent is usually needed to disclose recordings in which the patient is identifiable, unless disclosure is required by law or can be justified in the public interest such as to prevent a serious crime.

- Covert recording of patients is rarely justified and can only be considered with specific authorisation and in line with the law.

- Where a patient has died, you should follow their known wishes about recordings made while they were alive although if the patient is identifiable in the recording, you may need to consider obtaining further consent from their family before it appears in the public domain.

- Be cautious about agreeing to take part in television or radio programmes involving patients, or to appear in print or on the internet. As well as satisfying yourself that the patients have given their consent, you should check they understand the implications and be prepared to raise concerns and even withdraw your cooperation if you believe the recording is unduly intrusive or damaging to them.

*Making and using visual and audio recordings of patients, GMC, 18/4/11

Source:
Medical Defence Union Ltd