IGPOL54 Digital Images Recording Patients by Provide Community

Digital Images and Recordings of Patients Policy

Version: V6

Ratified by:

Clinical Reference Group

Date ratified: 13/03/2023

Job Title of author: Information Governance Manager

Reviewed by Committee or Expert Group

Equality Impact Assessed by:

1. Introduction

The organisation is enabling data recording and access to the ‘electronic patient record’ throughout its locale. Part of the process includes the attachment of digital images, scanned documents and audio and video data to patient records captured during clinical consultation and as a record of clinical procedures.

It must be recognised that digital photographs and recordings are easier to copy in electronic form and are therefore more at risk of inappropriate distribution. Particular care must be taken to protect these and control their storage. This policy has been introduced to protect both patients and staff.

2. Scope and Definitions

The policy applies to all staff who take photographs of Patients in the course of care provision.

Specific issues about recordings made for public consumption, such as filming for television etc. are excluded, as are any special considerations related to photographic processing, printing and storing of recordings in any format other than digital.

Any digital image or recording of a patient will form part of that patient’s records and should be managed according to the organisation’s Records Management policies

The term “Recordings” includes taking individual digital images, video recordings or audio recordings using a digital camera, mobile phone, video recording device and any other devices capable of taking and storing such media.

Digital recordings of staff, volunteers or others for publicity purposes (for example at events, training and workshops) and outside of a care setting is outside of the scope of this policy. In these instances, the Provide CIC model consent form should be used which is available on the staff intranet

3. Policy Statement

It is the policy of Provide that the recording, storing and use of recordings will comply with the requirements of the Data Protection Act, Professional Codes of Conduct and the Caldicott Guardian standards, and all staff are required to comply with this policy.

Recordings used for any purpose other than the purpose it was taken for must be completely anonymised, removing all person identifiable information (e.g. name, address, sex, date of birth) unless consent has appropriately sought for the new purpose.

Students of all disciplines should not take or store recordings of patients under any circumstances unless they are employed by the organisation and for the sole provision of providing patient-care.

Photographs and videos must only be taken and stored on equipment provided by the organisation and must not be taken and stored on personal devices.

For all recordings, care must be taken to respect the dignity, ethnicity and religious beliefs of the individual.

Breach of this policy is considered serious and as such will amount to serious professional misconduct resulting in disciplinary action.

4. Aims and Objectives

The main objective of the policy is to detail the responsibilities relating to the recording and storage of recordings. Digital Recordings are intrinsically easier to copy, manipulate and disseminate than conventional recordings and care must be taken to protect such records and maintain their integrity.

Where digital Recordings are used to record patients, wounds etc., due care must be taken before acquiring the images to ensure that the quality of the images, in terms of both resolution and colour depth, is adequate for their purpose.

5. Confidentiality

Verbal permission from the patient is needed for all images, external or internal, whether the patient is identifiable or not. The permission is to be recorded on the patient record.

Confidentiality is the patient’s right and may only be waived by the patient or by someone legally entitled to do so on their behalf. To ensure patient confidentiality is preserved staff must comply with the following:

• The patient’s permission must be obtained in writing using the organisation’s permission form (see Appendix 1), on most occasions, before images or recordings are taken (exceptions are detailed below);

• In exceptional circumstances, it may be in the patient's best interests to make an identifiable recording of a patient without first seeking permission, and to disclose the recording to others without their knowledge. Before proceeding discuss the recording with an experienced colleague. Staff must be able to justify such a decision to the patient and, if necessary, to others. If the recording will involve covert video surveillance of a patient, it is likely to be within the scope of the Regulation of Investigatory Powers Act 2000 and advice should be sought before proceeding. A decision to use covert video surveillance, for example in cases of suspected induced illness in children, will normally be based on discussions amongst all the agencies involved, and the surveillance itself should be undertaken by the police.

There are four levels of consent for images/recordings:

• Level 1 - No Permission given for images to be taken;

• Level 2 - Permission for images in Health Record Only

• Level 3 - Permission for Teaching and Training

• Level 4 - Permission for Conferences and/or Publication in books, journals, or on websites.

In the case of Level 4 – Conferences and/or publications, it should be made very clear to the patient that once an image is in the public domain; there is no opportunity for effective withdrawal of permission.

Patients must be fully informed of the purpose of the image/recording and be given a clear explanation of how the image may be used (an oral explanation is sufficient). This should include an idea of how many people may see it, so they can clearly understand the implications. This is especially important if the image is intended for use other than just the health record. Record in the medical notes that the patient has given permission.

Patients have the right to withdraw permission for use of their image/recording at any time. If a patient decides subsequently to withdraw their permission an additional consent form must be completed to record this and this must be recorded in the patient’s Electronic Health Record. All images must not be used and kept only in the health record.

Obtaining the patient’s permission only in the case of full length or facial recordings, from which the patient can easily be identified, is not acceptable. It is possible for patients to be identified from other views e.g. showing a tattoo or other distinguishing mark, case uniqueness etc. When making a judgment about whether the patient may be identifiable, bear in mind that apparently insignificant features may still be capable of identifying the patient to others. Since it is difficult to be absolutely certain that a patient will not be identifiable from a recording, no recording other than those mentioned in Section 6 below should be published or used in any form to which the public may have access, without the consent of the patient.

Where a patient is having a series of photographs or recordings taken to show the progress of treatment - for example in the treatment of a wound, permission should be obtained for each episode of care or for an agreed period of time. Where the purpose for which the recording is being taken changes then permission will need to be resought from the patient for this new purpose.

Where children who lack the understanding to give their permission are to be recorded, get permission to record from a parent or guardian. Children aged 16 or over can consent for themselves if they have the capacity to do so. Under 16s and over 13s can be assessed as Gillick competent to give consent themselves but parents can override this. Parents can consent for children they have parental responsibility for. Anyone over 16 can consent for themselves unless capacity to do so is in doubt in which case they should be assessed under the Mental Capacity Act 2005. If proven that they lack capacity then a best interest decision should be made in consultation with people who know them especially if a Lasting Power of Attorney is in place for Health and Welfare decisions. Recordings are prohibited for Level 4 in such instances.

People agreeing to recordings on behalf of others must be given the same rights and information as patients acting on their own behalf

6. Recordings for which permission is not required

Separate permission is not needed to make the recordings listed below. Nor do you need permission to use them for any purpose, provided that, before use, the recordings are effectively anonymised by the removal of any identifying marks (writing in the margins of an x-ray, for example):

• Images taken from pathology slides;

• X-rays;

• Laparoscopic images;

• Images of internal organs; and

• Ultrasound images.

Such recordings are unlikely to raise issues about autonomy and will not identify the patient. It may nonetheless be appropriate to explain to the patient, as part of the process of obtaining permission to the treatment or assessment procedure, that a recording will be made.

7. Recordings for which permission is required

Permission must be sought to make any recording for the assessment or treatment of patients, other than those recordings listed above.

Before the recording, ensure that patients:

• Understand the purpose of the recording, who will be allowed to see itincluding names if they are known - the circumstances in which it will be shown, whether copies will be made, the arrangements for storage and how long the recording will be kept;

• Understand that withholding permission for the recording to be made, or withdrawing permission during the recording, will not affect the quality of care they receive for Levels 3 and 4; and

• Are given time to read explanatory material and to consider the implications of giving their written permission. Forms and explanatory material should not imply that permission is expected. They should be written in language that is easily understood. If necessary, translations should be provided.

After the recording, ensure that:

• Patients are asked if they want to vary or withdraw their permission to the use of the recording;

• Recordings are used only for the purpose for which patients have given their permission;

• Patients are given the chance, if they wish, to see the recording in the form in which it will be shown;

• Recordings are given the same level of protection as health records against improper disclosure; and

• If a patient withdraws or fails to confirm permission for the use of the recording, the recording is not used and is erased as soon as possible.

• That patients are aware that later withdrawing their permission for their recording to be used for publication purposes (Level 4) may not be possible if the recording has already been published.

8. Recordings of Children

Staff should make very careful consideration of the appropriateness of photographing or recording children. This should only occur where there is an agreed clinical need and this decision should be made by the child’s clinician.

Images of children should be taken only if there are specific features that need recording for clinical or developmental reasons (e.g. assessing the progression of a skin lesion, documenting progress with regards to prescribed therapies), suspected child abuse or teaching (e.g. an important clinical sign that might only be seen rarely).

Images/recordings should only include the specific areas of clinical concern. Whole body shots should only be taken if absolutely necessary for justifiable clinical or therapeutic reasons.

If the child reaches the age 16 or is judged to be competent to consent – consent from the young person is now required. If the child is under 16 a valid consent from the parent is legally required.

Recording without permission may be prescribed in certain circumstances, for example, suspected non-accidental injury of a child, where it is unlikely that the parent or guardian will give permission and the recording of injuries is demonstrably to the patient’s benefit. Consultant level authority is required in such cases and immediate reference should be made to the organisation’s Child Protection Procedures.

9. Retention and Storage of Recordings

Since health records have to be available for disclosure if required either to the patient/carer or for litigation, it is essential that every image or recording is properly attached to the correct Electronic Patient Record (EPR). This information is also required to enable tracing of images/recordings if the patient should subsequently withdraw their consent. The image or recording should be correctly labelled as to what the image is of (numbering of images is not sufficient).

Recordings should be uploaded and stored on the EPR as a matter of priority, shortly after the image has been taken

Images or recordings should be deleted from devices as soon as they have been transferred to the EPR.

If it is not possible to attach the recording into the EPR or where this is not applicable then it must be stored in a secure location with appropriate access rights assigned to those who may need to access and in line with the organisation’s Information Security, Confidentiality and Records Management Policies. In the case of patient recordings, a note should be made in the EPR as to where the recording is stored.

All recordings must be kept in line with the requirements of the organisation’s retention schedules and in cases where recordings form part of the patient’s health record then they should be kept for the same period of time as the health record.

10. Use of Mobile Phones to make recordings

The use of Provide Group issued mobile phones to make recordings is allowed as long as the following is observed:

• Recordings must be downloaded from the device promptly either using a direct cable connection to a computer or by sending from and to an NHS Mail email account.

• The use of other transfer methods is prohibited as this may compromise security. This includes the use of third-party apps unless authorised by the Technology and the Information Governance Teams.

• The use of non-Provide issued mobile phones including personal mobile phones to take and store recordings of patients or staff is prohibited.

11. Recordings for publicity purposes

Where recordings are being made for publicity purposes advice should be sought from the Communications team in the first instance.

12. Copyright and Publication

The copyright of all recordings made by Provide staff in the course of their work belongs to the organisation, regardless of ownership of recording equipment and medium.

13. Digital Technology and Infection Prevention and Control

The use of digital technology is allowed as long as the following infection prevention and control procedures are observed:

• Hand hygiene should be performed between patient contact and before and after accessing a device in all community hospitals and all community care provision.

• The device (mobile phone, camera etc.) must be adequately decontaminated before and after contact with patient’s surroundings.

• Manufacturer’s guidelines for use, cleaning/disinfection should be reviewed to ensure these guidelines meet the standards for cleaning and low-level disinfection that are necessary for exposure to Multi-Drug Resistant Organisms.

• In community hospitals, items that cannot be adequately cleaned should not be used, or be designated as ‘clean’; and not be accessed in patient rooms or be touched by patients.

• If an item cannot be cleaned with a detergent and disinfectant and is necessary for patient care, a risk assessment should be done with the infection prevention and control team to determine the best approach to mitigate the risk of transmission of micro-organisms.

• All touch-surfaces of IT devices used at, or near point-of-care must be cleaned and disinfected with a detergent and disinfectant wipe if used or touched during the encounter with the patient.

• The surface of phones and should be cleaned in a manner that prevents damage to internal systems from excessive fluid.

• If an item cannot be adequately cleaned and will be accessed in a patient room or touched by patients, it requires a wipeable/washable cover.

The user/owner of the device is responsible for and cleaning and disinfection of the device.

14.Review

This policy will be reviewed every three years (or sooner if new legislation, codes of practice or national standards are introduced).

Appendix 1: Permission for making and using Digital Recordings of Patients (including for third part use)

Visual and audio recordings form part of your confidential health records and can be used to assist in the diagnosis, treatment and outcome of your condition. They may also provide a resource for medical teaching or research.

A member of staff will explain what the recording is to be used for and will ask you to sign this permission form.

If you do not give your permission to the recording being used for teaching, research or publication, the standard of care you receive will not be affected.

You may withdraw your permission to the use of the recording at any time, however, if published; withdrawal of permission may not be possible. No fees are paid for publication or broadcast.

You may ask for a relative, friend or nurse to be present during the recording.

Permission to Visual and Audio Recording

In view of the explanation given to me, I agree that the recording being taken of me/my child may be used as follows (Tick as appropriate):

Level 1 – I do not give my permission for Recordings to used or taken for any purpose

Level 2 – For my/ my Child’s Health Record Only

Level 3 –For my/ my Child’s Health Record and for training of appropriate medical and professional staff

Level 4 - For my/ my Child’s Health Record, training and publication in appropriate medical or professional Journals, medical or professional Conferences or professional electronic media (e.g. Online Journals) If any other use is required, I understand my consent to this will be specifically sought

Signature Print name

Patient/Parent/Guardian (Delete as appropriate)

Signature of interpreter ………………...Print name (If Applicable)

Patient NHS No……………………………………………………

Patient Name…………………………………………………

A copy of this form should be filed in the patient’s health records or an appropriate electronic indicator recorded

Description of image or recording: Reason for the Recording (Aetiology and location of the wound if applicable):

EQUALITY IMPACT ASSESSMENT TEMPLATE: Stage 1: ‘Screening’

Name of project/policy/strategy (hereafter referred to as “initiative”):

Digital Images and Recordings of Patients Policy

Provide a brief summary (bullet points) of the aims of the initiative and main activities: To set out the basic principles related to acquiring and using digital recordings and images of patients captured during clinical consultation and as a record of clinical procedures

Project/Policy Manager: Information Governance and IT Projects Manager Date: February 2023

This stage establishes whether a proposed initiative will have an impact from an equality perspective on any particular group of people or community – i.e. on the grounds of race (incl. religion/faith), gender (incl. sexual orientation), age, disability, or whether it is “equality neutral” (i.e. have no effect either positive or negative). In the case of gender, consider whether men and women are affected differently.

Q1. Who will benefit from this initiative? Is there likely to be a positive impact on specific groups/communities (whether or not they are the intended beneficiaries), and if so, how? Or is it clear at this stage that it will be equality “neutral”? i.e. will have no particular effect on any group.

Neutral

Q2. Is there likely to be an adverse impact on one or more minority/under-represented or community groups as a result of this initiative? If so, who may be affected and why? Or is it clear at this stage that it will be equality “neutral”?

Neutral

Q3. Is the impact of the initiative – whether positive or negative - significant enough to warrant a more detailed assessment (Stage 2 – see guidance)? If not, will there be monitoring and review to assess the impact over a period time? Briefly (bullet points) give reasons for your answer and any steps you are taking to address particular issues, including any consultation with staff or external groups/agencies. Positive impact – ensures that patients provide consent to take and use digital images and recordings and that adequate safeguards are in place to ensure confidentiality,

Policy to be monitored through the organisation’s Incident Reporting process and reviewed every 3 years.

Guidelines: Things to consider

Equality impact assessments at Provide take account of relevant equality legislation and include age, (i.e. young and old,); race and ethnicity, gender, disability, religion and faith, and sexual orientation.

The initiative may have a positive, negative or neutral impact, i.e. have no particular effect on the group/community.

Where a negative (i.e. adverse) impact is identified, it may be appropriate to make a more detailed EIA (see Stage 2), or, as important, take early action to redress this – e.g. by abandoning or modifying the initiative. NB: If the initiative contravenes equality legislation, it must be abandoned or modified.

Where an initiative has a positive impact on groups/community relations, the EIA should make this explicit, to enable the outcomes to be monitored over its lifespan.

Where there is a positive impact on particular groups does this mean there could be an adverse impact on others, and if so can this be justified? - e.g. are there other existing or planned initiatives which redress this?

It may not be possible to provide detailed answers to some of these questions at the start of the initiative. The EIA may identify a lack of relevant data, and that data-gathering is a specific action required to inform the initiative as it develops, and also to form part of a continuing evaluation and review process.

It is envisaged that it will be relatively rare for full impact assessments to be carried out at Provide. Usually, where there are particular problems identified in the screening stage, it is envisaged that the approach will be amended at this stage, and/or setting up a monitoring/evaluation system to review a policy’s impact over time.

EQUALITY IMPACT ASSESSMENT TEMPLATE: Stage 2:

(To be used where the ‘screening phase has identified a substantial problem/concern)

This stage examines the initiative in more detail in order to obtain further information where required about its potential adverse or positive impact from an equality perspective. It will help inform whether any action needs to be taken and may form part of a continuing assessment framework as the initiative develops.

Q1. What data/information is there on the target beneficiary groups/communities? Are any of these groups under- or over-represented? Do they have access to the same resources? What are your sources of data and are there any gaps?

Not applicable

Q2. Is there a potential for this initiative to have a positive impact, such as tackling discrimination, promoting equality of opportunity and good community relations? If yes, how? Which are the main groups it will have an impact on?

Not applicable

Q3. Will the initiative have an adverse impact on any particular group or community/community relations? If yes, in what way? Will the impact be different for different groups – e.g. men and women?

Not applicable

Q4. Has there been consultation/is consultation planned with stakeholders/ beneficiaries/ staff who will be affected by the initiative? Summarise (bullet points) any important issues arising from the consultation.

Not applicable

Q5. Given your answers to the previous questions, how will your plans be revised to reduce/eliminate negative impact or enhance positive impact? Are there specific factors which need to be taken into account?

Not applicable

Q6. How will the initiative continue to be monitored and evaluated, including its impact on particular groups/ improving community relations? Where appropriate, identify any additional data that will be required.

Guidelines: Things to consider

An initiative may have a positive impact on some sectors of the community but leave others excluded or feeling they are excluded. Consideration should be given to how this can be tackled or minimised. It is important to ensure that relevant groups/communities are identified who should be consulted. This may require taking positive action to engage with those groups who are traditionally less likely to respond to consultations, and could form a specific part of the initiative. The consultation process should form a meaningful part of the initiative as it develops, and help inform any future action. If the EIA shows an adverse impact, is this because it contravenes any equality legislation? If so, the initiative must be modified or abandoned. There may be another way to meet the objective(s) of the initiative.

Further information:

Useful Websites www.equalityhumanrights.com Website for new Equality agency www.employers-forum.co.uk – Employers forum on disability www.efa.org.uk – Employers forum on age

MDA 2007 EQUALITY IMPACT ASSESSMENT TEMPLATE: Stage One: ‘Screening’