Sharing an image of an unusual presentation with a colleague may be valuable in the diagnostic process. But Avant’s RUANNE BRELL says it’s vital to treat clinical images like any other health information.
Four-year-old K is brought into the regional hospital’s ED complaining of severe photophobia. Her eyelid is swollen. Her father says they were in the shopping centre when K screamed in pain. He didn’t believe K had been stung.
The resident remembers reading about eye injuries from hand sanitiser and wonders if this might be the cause. She quickly takes some photos of the injured eye on her phone and contacts the nearest ophthalmology clinic for advice.
K recovers, but the resident is concerned about the risk to other children. She writes a post for a community Facebook page and uploads the photos. She doesn’t mention any names or seek permission to share the photos. Several people ask K’s father about the injury after seeing the post. He contacts the hospital*.
Images and patient care
Images can be valuable in supporting patient care but before you take and/or share them, it’s important to understand your obligations and ask yourself some key questions.
Will a photograph help? Smartphones make it very easy to take photos, almost without thinking. Nevertheless, in your professional capacity, always consider whether an image will help with treatment or diagnosis.
Has the patient consented? Having decided that an image will assist in treatment, you need consent from the patient, or their parent or guardian. Explain: why you want to take the image; how the image will be used; who will have access to it.
Do you need consent in writing? Consent can be written or verbal. Ask the patient, or their guardian, to sign a consent form if your hospital or practice policy requires this. For verbal consent, this should be documented in the patient’s medical records.
No matter how you obtain consent, ensure it’s for the specific purpose/s for which you want to use the image. If it’s for non-clinical purposes, such as education or research, discuss this with the patient and ensure it’s included in your notes of the discussion.
Store the completed consent form, or document any verbal consent, in the patient record along with the images.
Could the image be identifiable? It’s safest to assume any image could be identified so ensure you seek permission to capture and use it. Even if the image doesn’t include the patient’s face or name, they may be recognisable from pieces of information, particularly in combination. An unusual injury or condition, the time and location, or the person who took the image, might allow someone to identify the patient.
Have you made sure the image is secure? Follow any hospital or practice policies about which device you can use to take the image and which platforms to share images.
If using your own device, check the security settings, particularly as some default settings can lead to inadvertent privacy breaches (i.e. an automatic upload to a cloud service). Once you have saved the image to the patient’s clinical record, delete it from your device.
How can you use the image? Clinical images are health information. As with any other health record or information, you are bound by the requirements of the privacy legislation in your state or territory and your duty of confidentiality.
In the scenario above, taking images for the purpose of treating the injury, and sharing them with specialist colleagues for the same purpose, is permissible under privacy legislation.
However, it’s not permissible to use the image for another purpose without specific consent from the patient or their guardian, even if you think it is de-identified.
Using clinical images safely
Clinical images are valuable for diagnosis and to improve care. Developments in technology have increased the ease and speed with which they can be used in clinical treatment.
The key is to remember clinical images are health information and assume the patient could be identified. For this reason, ensure you seek patient consent and follow privacy, security, and storage requirements.
*Scenario based on Avant claims experience. It has been de-identified and certain facts have been altered to illustrate the legal issues involved. It doesn’t reflect any individual matter.
Disclaimer: This article is intended to provide commentary and general information. It does not constitute legal or medical advice. You should seek legal or other professional advice before relying on any content, and practise proper clinical decision making with regard to the individual circumstances.
ABOUT THE AUTHOR: RUANNE BRELL is a senior legal advisor in the Advocacy, Education and Research team at Avant with over 15 years’ experience in health and medical law. She also provides advice to Avant’s members via its Medico-legal Advisory Service.
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