Making and using visual and audio recordings of patients
This does not include recordings of people in their workplace designed to illustrate or identify occupational hazards.
This guidance does not cover CCTV recordings of public areas in hospitals and surgeries, which are the subject of separate guidance from the Information Commissioner’s Office.
Coded information – also known as pseudonymised information – is information from which individuals cannot be identified by the recipient, but which enables information about different patients to be distinguished, or information about the same patients to be linked over time; for example, to identify drug side effects. A ‘key’ might be retained by the person or service which coded the information so that it can be reconnected with the patient.
Relevant legislation includes, for example, the Data Protection Act 1998, Freedom of Information Act 2000 and the Freedom of Information (Scotland) Act 2002, and the mental capacity legislation in England, Wales and Scotland. If in doubt about your legal obligations, you should seek advice from your defence organisation.
You should seek advice from your employing or contracting body on how to access and comply with local policies and procedures; for example, from your local medical illustration department, or a Caldicott Guardian or equivalent.
See part 2 of Consent: patients and doctors making decisions together for advice on making decisions about investigations and treatment, including sharing information with patients.
Section C of the publication Data Protection Technical Guidance – Determining what is personal data (Information Commissioner’s Office, 2007) deals with the anonymisation of information.
Paragraphs 63-70 of Confidentiality provide advice on making disclosures in the public interest, including guidance on public interest disclosures for research and other secondary uses.
Further guidance on assessing capacity is set out in Consent: patients and doctors making decisions together.
Welfare attorneys and court-appointed guardians (Scotland); holders of lasting powers of attorney and court-appointed deputies (England and Wales).
Making decisions about treatment and care of patients who lack capacity is governed in England and Wales by the Mental Capacity Act 2005 and in Scotland by the Adults with Incapacity (Scotland) Act 2000. In Northern Ireland, there is currently no relevant primary legislation, and decision making for patients without capacity is governed by the common law. At the time of publication, a legislative framework for new mental capacity and mental health legislation is being developed.
Personal information can be disclosed if it will benefit or is in the best interests of the patient but this is unlikely to apply in the circumstances covered by this guidance. Paragraphs 13-17 of Confidentiality: Disclosing information for education and training purposes provides advice on disclosing personal information for education and training purposes about patients who lack capacity.
Further information about assessing capacity and consent issues for children or young people is set out in our guidance 0-18 years: guidance for all doctors.
Further guidance on sharing information is provided in paragraphs 18 - 21 of Consent: patients and doctors making decisions together.
Guidance on capacity issues is set out in part 3 of Consent: patients and doctors making decisions together.
See endnote 11 for a summary of the law.
Guidance on involving adults who lack capacity in research is set out in paragraphs 23-35 of Consent to research.
Advice on involving children or young people in research is set out in paragraphs 36-40 of 0-18 years: guidance for all doctors.
Guidance on the particular considerations in relation to seeking and acting on consent for children or young people to participate in research is set out in paragraphs 14-20 of Consent to research.
Caldicott Guardians are senior people in the NHS, local authority social care, and partner organisations, who are responsible for protecting the confidentiality of patient information, and for enabling appropriate information sharing.
Further information about disclosures after a patient’s death is set out in paragraphs 70 - 72 of Confidentiality.
The provides guidance on managing information about the deceased.
The Human Tissue Act 2004 provides the framework for the regulation of human tissue in England, Wales and Northern Ireland. Scotland has its own Human Tissue (Scotland) Act 2006. The Human Tissue Authority publishes the Code of Practice 3 – Post mortem examinations (2009) and the Code of Practice 1 – Consent (2009).
The scheme for authorisations is set out in ss.28-30 of the Regulation of Investigatory Powers Act 2000 and ss.5-8 of the Regulation of Investigatory Powers (Scotland) Act 2000.
(Department for Children, Schools and Families guidance revised March 2008).
(Scottish Government, 2003).
Safeguarding Children in whom Illness is Fabricated or Induced (Welsh Assembly Government, 2008).
The NHS Code of Practice: Records Management (Department of Health, 2006), Records Management: NHS Code of Practice (Scotland) (Scottish Government, 2008), Welsh Health Circular (2000) 71: For The Record (National Assembly for Wales) and Good Management, Good Records (Department of Health, Social Services and Public Safety, Northern Ireland, 2005) all include advice on storing and disposing of recordings made as part of a patient’s care or as part of research.