In brief:
- Physicians should obtain express consent from patients to use clinical photographs and videos for educational or promotional purposes. Consent forms are appropriate.
- Remove any personal identifiers to protect patient confidentiality. If practising in a hospital or institution, be aware of the organization’s policies.
Physicians might use clinical photographs and videos to document the presence and progression of disease, and to educate health providers and patients. Unless there has been previous discussion, patients may not expect their clinical photographs or videos to be used for anything other than treating and documenting their medical conditions. This article provides advice for using these photographs/videos responsibly.
Physicians' obligations
Patients' photographs or videos would generally be considered personal health information. This is especially so if they depict sensitive or private parts of the body or include characteristics that could identify the patient, such as a birthmark, a ring, the face, or a unique anatomical feature.
Consent requirements
A patient's implied consent is usually sufficient when you are collecting, using, or disclosing an individual's personal health information to provide healthcare within the circle of care, for example to monitor disease, for surveillance of nevi, etc. However, some Colleges require express consent prior to taking any photograph or video recording of a patient even for the purposes of care.
A patient's express consent must also be obtained when you share their personal information for purposes other than providing healthcare (e.g. educational or promotional purposes). Physicians should therefore discuss with patients in advance and obtain their consent about any photographs or videos that may be taken, providing information about how they will be used and protected.
What should be included in the informed consent discussion for the use of photographs and videos for educational purposes?
If you intend to use clinical photographs or videos of a patient, particularly for educational reasons, you should consider discussing the following with the patient:
- the reasons for taking the photographs or videos
- what will be photographed or recorded
- whether the patient will be identifiable
- the possible purposes or applications
- who may be authorized to access the photographs or video, and in what context
- the patient's right to refuse, withdraw, or modify consent
Patients should not feel pressured and the discussion should be documented in the patient's medical record.
Does public access to the educational program change the form of express consent?
It is important to inform patients where the photographs/videos may be published. For example, patients should be advised if these will be published on clinic websites or social media platforms. Keep in mind that many academic journals and educational programs are accessible online.
Be alert to any personal identifiers
When patients consent to the use of their anonymous photographs or videos for educational purposes, you should remove any personal identifiers to protect patient confidentiality. You will want to remove the patient’s name (including any identifying data attached to the digital photograph or video, such as the name used to save the electronic file) and other identifying information such as age, gender, patient history, etc.
Is written authorization in the form of a witnessed, signed consent form required?
Most privacy legislation does not define how express consent must be obtained, but at least one province and one territory require it to be in writing, subject to specified exceptions. However, it is prudent to request that patients complete a written authorization form. You may consider using and customizing a sample consent form [PDF] for use in your practice.
It is important to emphasize that a consent form alone does not constitute the consent of the patient. You should ask the patient to complete the form only after you have a discussion about the type of photographs or videos that will be taken and how these will be used, and the patient agrees to the use and disclosure of these for the specified purposes.
The consent form should include the range of possible uses. For example, it should detail the nature of the photographs or videos and list the intended purposes for their subsequent use and disclosure.
When obtaining express consent, oral or written, you should place a note about the consent discussion in the patient's medical record. If you have obtained a signed consent form, a copy of this should also go into the medical record.
Devices and file storage
While convenient, it is generally preferable to avoid using personal devices when taking photographs and videos of patients. Permanently delete photographs and videos from the device as soon as you have uploaded them to their appropriate locations (e.g. the patient’s medical record). Be mindful of leaving unnecessary copies or versions of any patient images on devices (e.g. mobile phones, laptops, portable hard drives, USB keys). Ensure encryption software is installed on any device on which photographs and videos are kept.
Is it possible to use historical photographs or videos?
It may be difficult, if not impossible, to obtain express consent to use clinical photographs of patients that were taken many years ago. Privacy legislation does not necessarily prohibit the continued use of non-identifying clinical photographs or videos. However, if there is a reasonable possibility that a patient could be identified, you should refrain from using the photographs or videos unless express consent can be obtained from the patient (or from the legal representative, if the patient is deceased or mentally incapacitated).
Journal article case
A patient agreed to have a clinical photograph taken to illustrate the surgical approach being used to treat her breast cancer. Her face was visible in the photograph as was the surgical scar on her chest.
The surgeon was approached by a journalist who wanted to write an article on breast cancer for a medical journal. A few medical photographs were given to the journalist with the understanding that the eyes of the patients would be hidden to preserve anonymity. This patient's photograph was published in the medical journal with black rectangles over her eyes.
The photograph was never returned to the surgeon. Four years later, it was published in another academic journal but without the black rectangles. The patient was clearly identifiable.
A settlement was paid to the patient by the CMPA on behalf of the member with an equal contribution from the publisher of the journal.
Public brochure case
A 36-year-old woman underwent an aesthetic facial procedure. The patient gave verbal consent to her physician to use her before and after photographs but only in specific contexts (i.e., for scientific purposes, or in research or educational presentations). This verbal consent was not documented.
The physician gave the photographs to a colleague in the clinic but failed to clarify the limitations on their use. Subsequently the patient learned her photographs were being used in a brochure for the public.
The patient commenced a legal action. A settlement was paid to the patient by the CMPA on behalf of the member physician.
