Medical photography illustrates what people would prefer to keep private, is practiced when people are vulnerable, and has the power to freeze a moment in time. Given it is a sensitive area of health, lawful and ethical practice is paramount. This paper recognises and seeks to clarify the possibility of widespread clinician-taken medical photography in a tertiary hospital in Australia, examining the legal and ethical implications of this practice. A framework of law, state Department of Health policy and human rights theory were used to argue the thesis.
Clinicians from 13 purposively chosen wards were asked to participate in an anonymous survey and confidential in-depth interviews. Questions were generated from the literature and local knowledge on the topics of ‘occurrence’, ‘image use’, ‘quality of consent’, ‘cameras and technology’, ‘confidentiality’, ‘data storage and security’, ‘hospital policy and law’ and ‘cultural issues’. One hundred and seventy surveys and eight interviews were analysed using descriptive statistics and theme and content analysis, then triangulated for similarity, difference and unique responses.
Forty-eight percent of clinicians surveyed take medical photographs, with the majority using hospital-owned cameras. However, one-fifth of clinicians reported photographing with personal mobile phones. Non-compliance with written consent requirements articulated in policy was endemic, with most clinicians surveyed obtaining only verbal consent. Labelling, storage, copyright and cultural issues were generally misunderstood, with a significant number of clinicians risking the security of patient information by storing images on personal devices.
If this tertiary hospital does not develop a clinical photography action plan to address staff lack of knowledge, and non-compliance with policy and mobile phone use, patients’ data is at risk of being distributed into the public domain where unauthorised publication may cause psychological harm and have legal ramifications for the hospital, its patients, and staff.The authors conclude -
We believe the surveyed site is facing endemic policy non-compliance in the area of consent for clinical photography. If this hospital ignores staffs’ lack of policy compliance and mobile phone use, patients’ personal information is at risk of being irreversibly distributed into the public domain. Such unauthorised publication may cause psychological harm to the patient and have legal ramifications for the hospital and its staff. The current lack of compliance for consent, capture, storage and disposal of images, in conjunction with misconceptions regarding copyright, puts patients’ personal information at risk with a high potential for harm given that the security and distribution of electronic information is only as good as the least dependable individual. Today’s media no longer considers medical information private, and anyone with access to an internet-capable device can become a publisher. The great risk of leaving images on a mobile phone is that if the information is lost or transmitted to an unauthorised source, the images could be published across the world in seconds.
While this research revealed that 47.8% of staff has taken photographs of patients in the last year, this figure is probably an underestimate as the research relied on clinicians self-reporting behaviour that may be non-compliant with current policy. We speculate that this tertiary hospital is probably not different to others around Australia where the dissonance between practice and policy in the collection and management of medical photography is common.Accordingly they recommend that -
Institutions grappling with balancing the benefits and risks of clinician-taken medical photographs should research the prevalence of the practice within their workplace. Policy makers need to understand the value of medical photography to clinicians, the risks posed by picture taking and internet-capable mobile devices, and acknowledge that digital medical photography is already occurring and its use will only increase as technology develops. A typical policy should address the consent, capture, production, reproduction, management, retention and copyright of the medical images. It should specifically address the capture of images on personal equipment, especially on smart phones and tablet devices, and outline penalties for non-compliant practice. In order effectively to manage images, institutions must have a production pathway recognising that images captured in the clinical setting must be reunited with the patients file. A production pathway may include purchasing digital asset management software to manage a medical image database, adapting current clinical systems to accept digital picture files or simply requiring that all clinical images are printed. Regardless of the chosen strategy, the production pathway should be carefully managed by a single department and monitored though quality-control auditing.
While technology has created the challenge of managing clinician-taken medical images it may also provide the solution. Emerging smart phone apps like PicSafe now incorporate the consent, capture, storage and retention of medical images within a single digital system. We suggest that in the area of digital medical photography, technology will always be a forerunner to legislation and policy development, thus the key to best practice medical photography management is creating a policy that recognises the national goal of a shared electronic health record and is flexible enough to incorporate future technologies.