|Industry Focus:||Life Sciences & Healthcare|
What you need to know
- Clinical photographs taken with smartphones are subject to the same confidentiality and privacy protocols that apply to any medical record.
- Health practitioners who take and receive photos on personal devices must be familiar with the Australian Privacy Principles which cover the collection, use, disclosure and protection of those photos.
- Practical guidance on the appropriate use of smartphone photographs in health practice can also be taken from a guide published by the Australian Medical Association and Medical Indemnity Industry Association of Australia.
Picture this: A patient with a critical wound arrives in a hospital emergency room. The doctor on duty uses a smartphone to snap a photograph of the injury. That photo goes to an off-site specialist who analyses it and provides immediate input into the patient's diagnosis and treatment, all while the patient is being prepared for surgery.
This scenario is not far-fetched. In recent years, the prevalence of smartphones has led to an increase in the use of photographs in daily health practice. Clinical photos can be transferred and analysed quickly, creating great opportunities for improved patient care.
However, a recent survey of Canadian health practitioners reportedly found that 75% of those interviewed store patient photographs alongside their personal photographs on personal devices. About 25% have accidentally shown patient photographs to friends or family. These types of results trigger serious concerns about patient privacy and consent.1
Although smartphones are undeniably handy, clinical photos or recordings remain subject to the same confidentiality and privacy protocols that apply to any medical record.
So how can Australian health practitioners appropriately use smartphones and similar devices to take clinical photos of patients? Aside from Australia's privacy legislation, useful direction can be taken from a guide produced by the Australian Medical Association and Medical Indemnity Industry Association of Australia.
Privacy legislation governing clinical photographs
The Australian Privacy Principles (APPs) contained in the Privacy Act 1988 (Cth), together with relevant state and territory legislation, govern the handling of patients' personal information. The APPs apply to all private sector organisations that hold health information and to people who work within them. This includes health practitioners practising in partnerships or alone, in private hospitals, aged care facilities and other private health facilities.
The APPs cover the collection, use, disclosure and protection of personal information, as well as access to that information. When it comes to clinical photos in health practice, here are the key issues to note:
- Taking photographs (and audio or video recordings) in which a patient can be reasonably identified constitutes a collection of personal information. Photographs collected in the course of providing a health service also constitute 'health information', to which stricter privacy requirements apply.
- Health practitioners can only collect health information if:
- it is reasonably necessary for them to perform one or more of their functions or activities; and
- they have the patient's consent (APP 3).
This means health practitioners can only collect photographs of patients if it is reasonably necessary to provide health services to them, and they must be able to justify that this is so.
Consent must be obtained before a patient's photograph is taken. Consent must be based on the patient being both adequately informed and capable of understanding and communicating consent. Consent must also be voluntary, current and specific.
- Health practitioners can only use (handle) or disclose (make accessible to others) health information in specific circumstances, including:
- for the main or dominant reason (primary purpose) for collection; and
- for a directly (closely) related secondary purpose if the patient would reasonably expect it or if the patient has consented (APP 6).
This generally means that health practitioners can use and disclose a photograph as part of providing clinical care and treatment to a patient, including sharing the photograph with others in the patient's treating team. If the patient consents, their photograph may be used for purposes outside their direct care, such as research, education and training.
- Health practitioners must take reasonable steps to protect personal information from misuse, interference and loss, as well as unauthorised access, modification or disclosure (APP11). 'Reasonable steps' will include active measures to safeguard information, and circumstances will dictate what those 'active measures' should be. There is a higher threshold for security for photographs due to the sensitivity of photos and the possible adverse consequences for a patient if there is a data breach.
- Except in very limited circumstances, health practitioners must give patients access to their personal information if requested. This could include providing copies of photographs collected and used in a patient's clinical care and treatment (APP 12).
Practical guidance from the AMA and MIIAA: 'Clinical images and the use of personal mobile devices' guide
The Australian Medical Association (AMA) and Medical Indemnity Industry Association of Australia (MIIAA) have produced a guide on the proper use of personal mobile devices when taking or transmitting clinical images for the purpose of providing clinical care.2 While it is targeted at medical students and doctors working in public hospitals, the guide is also useful for those in private clinical settings and health practitioneers generally.
Although the AMA and MIIAA caution that their guide should be read alongside relevant privacy legislation, as well as any governing hospital policies and contracts, they provide useful direction for health practitioners (and the organisations in which they operate) on a number of issues. We summarise three critical ones below.
Patient consent must be managed appropriately
The guide emphasises the importance of ensuring the patient (or their substitute decision maker, where the patient lacks the requisite capacity) makes an informed decision when consenting to or refusing the collection, use and disclosure of clinical images taken with a personal device. This consent, including any refusal or withdrawal, must be documented in the patient's health record.
To help ensure a patient can make an appropriately informed decision, the guide suggests that practitioners discuss these key issues with the patient (or their substitute decision maker):
- the purpose(s) of the clinical image
- how the image may be used (which might include use in a de-identified form for training and education purposes)
- who will have access to the image
- whether and why it might be shared and disclosed to others
- whether it will be de-identified
- how and where it will be stored.
The guide stipulates that once the image has been taken and forms part of the health record, it cannot normally be deleted (especially when a patient has consented to their image being used in a publication).
The guide recognises that clinical images could be disclosed to third parties without a patient's consent in limited circumstances.This includes preventing a serious threat to the safety or health of a patient or the public, or for training, teaching and research where images are de-identified. De-identification might require the removal of details around the image's collection (time, date and GPS location), metadata and other features which could potentially allow identification of a patient.
In the event of uncertainty, the guide encourages practitioners to seek advice from hospital management and if necessary from their medical defence organisation about the circumstances where patient consent is unnecessary.
Data security is critical
Practitioners who take or receive clinical photos should:
- ensure they use systems which will prevent images being automatically uploaded to social media or back-up sites
- delete clinical images from their personal mobile devices once they have been saved onto a patient's health record
- have controls on their devices to prevent unauthorised access (such as a passcode).
Hospitals, aged care facilities and other organisations handling health records should use systems that provide a secure platform enabling health practitioneers to transfer an image from their personal mobile device to a patient's health record safely, securely and effectively.
Privacy breaches can have serious consequences
The guide highlights that a breach of privacy can result in a complaint to the Privacy Commissioner, as well as to regulatory authorities such as the Health Care Complaints Commission. A practitioner working in a public hospital could also be in breach of that organisation's policies and contracts.
The guide further notes that where images may be considered pornographic or obscene if taken out of context, dissemination of those images could amount to a criminal offence.
The use of smartphones and similar devices to take images and recordings is quickly becoming routine practice in the diagnosis and management of patients' conditions. For health practitioners who take or receive clinical photos, and for the workplace in which those practitioners operate, it is prudent to:
- be familiar with relevant privacy laws and the AMA/MIIAA guide
- implement policies to appropriately manage clinical photos taken on personal devices, including the mandatory training of administrative staff in relation to privacy issues and the implementation of sufficient and secure IT systems
- establish protocols about consent, use, disclosure, storage and retention of images and recordings taken on personal devices.
At the end of the day, smartphone cameras can play a critical role in the provision of good medical care, as long as they are used appropriately, with privacy obligations in mind.
1 Tom Blackwell, "Saving lives or risky pics? 'Revolution' in MDs' smartphone photos raises ethical concerns", National Post (17 April 2016) at http://news.nationalpost.com/news/canada/saving-lives-or-risky-business-revolution-in-mds-smartphone-photos-raises-privacy-ethical-concerns
2 The guide is accessible at https://ama.com.au/article/clinical-images-and-use-personal-mobile-devices. It does not cover other purposes such as research, teaching or training.
This article is intended to provide commentary and general information. It should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this article. Authors listed may not be admitted in all states and territories