Consent for photography: legal issues

Published on 16/03/2015 by admin

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Last modified 16/03/2015

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29 Consent for photography

legal issues

David J. Goldberg

Summary and Key Features

• The use of cosmetic photography may lead to legal issues

• Informed consent is required prior to taking cosmetic photographs

• Informed consent must delineate the purposes for which cosmetic photographs will be used

• The improper use of cosmetic photographs may be considered an invasion of patient privacy

• In the USA, invasion of patient privacy is regulated by the Privacy Rule in the Health Insurance Portability and Accountability Act (HIPAA 1996)

• The patient’s medical record must document that cosmetic photographs have been taken

• Improper use of cosmetic photographs may be deemed an act of negligence

• Improper use of cosmetic photographs may lead to a lawsuit against the physician

Introduction

When dermal fillers are used for cosmetic purposes, appropriate informed consent is required both because of privacy-related issues (in the USA this is regulated by the Privacy Rule in the Health Insurance Portability and Accountability Act: HIPAA 1996) and because of medical liability issues. This chapter will first discuss the privacy-related issues behind the use of photography when dermal fillers are used for cosmetic purposes. This discussion will be followed an analysis of the medical liability issues associated with this. It should be noted that, although principles of US law will be applied, the overriding guidelines will apply to legal issues of ethical filler use throughout the world.

Photography

The use of patient photography, videotaping, digital imaging, and other visual recording during cosmetic filler treatment is common. Although cosmetic patient photographic documentation is fairly common, liability issues need to be considered and federal regulations observed.

Without proper precautions during such a healthcare encounter, patient photography may make an aesthetic physician liable for invasion of privacy. US courts have imposed liability primarily when the provider has exploited the patient for commercial benefit. However, courts have also imposed liability when the patient’s name or likeness was used for non-commercial purposes, finding that even taking a picture without the patient’s expressed consent was an invasion of privacy.

Physicians may also be subject to liability for publishing photographs or other images under the type of invasion of privacy known as ‘public disclosure of embarrassing private facts’. In one case, the court ruled that a physician had invaded a patient’s privacy by using ‘before’ and ‘after’ photographs of her face to demonstrate the effects of a facelift. The use of the photographs publicized the fact the patient had had a facelift, which she found embarrassing and distressing. Before allowing patient photography, it is important that a physician consider why it is being done and how the images will be used.

Regulation

The US standards for privacy of individually identifiable health information, also known as the final Privacy Rule from HIPAA 1996, address photographs and similar images both directly and indirectly.

Section 160.103 defines health information in a manner that implies inclusion of patient photography:

Health information means any information, whether oral or recorded in any form or medium, that:

(1) Is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and

(2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of healthcare to an individual.

According to Section 164.514(b)(2), Implementation Specifications: Requirements for Identification of Protected Health Information, photographic and comparable images are explicitly noted as an item to be removed during de-identification in order for records to avoid the protected health information status and fall outside the regulations:

A covered entity may determine that health information is not individually identifiable health information only if:

(2)(i) the following identifiers of the individual or of relatives, employers, or household members of the individual, are removed:

(Q) full face photographic images and any comparable images

The US Joint Commission on Accreditation of Healthcare Organizations and other similar organizations do advise that informed consent should be obtained from patients for purposes of patient photography. In the event that photographs are obtained prior to securing patient consent, they should be sequestered from use or release pending receipt of an appropriate consent.

The Joint Commission further advises that a confidentiality commitment be signed by anyone conducting filming or videotaping. This would be especially important to recognize when outsiders are involved because many organizations already require employees to sign annual confidentiality statements that should include patient photography within the commitment.

In offices where cosmetic fillers are given, patient photography is used routinely to document patient care. In such a setting, the practice of patient photography should be included in the US HIPAA-mandated notice of information practices, as well as in the consent for treatment signed by all patients. It is advised that a consent paragraph, such as the one below, be routinely used.

I understand that photographs, videotapes, digital, or other images may be recorded to document my care, and I consent to this. I understand that [physician’s name] will retain the ownership rights to these photographs, videotapes, digital, or other images, but that I will be allowed access to view them or obtain copies. I understand that these images will be stored in a secure manner that will protect my privacy and that they will be kept for the time period required by law or outlined in our [physician’s name] policy. Images that identify me will be released and / or used outside the office only upon written authorization from me or my legal representative.

It should be noted that such consent does not authorize the use of the images for other purposes, such as teaching or publicity. A separate consent for photography form should be used for such purposes.

In addition, HIPAA regulations require patient authorization for the release of protected health information, which includes patient photography, for purposes beyond treatment, payment, and healthcare operations.

Since photography is routinely undertaken when dermal fillers are injected, the above paragraph may be incorporated into the consent form for that procedure.

Fillers used in investigational studies

Photographs taken as part of a research protocol should be approved by an institutional review board (IRB) or privacy board, as termed by HIPAA. Consent for such photography should be incorporated into the consent form the patient signs to participate in the research protocol. The HIPAA-directed privacy board (or IRB) should be directly involved in decisions related to practices regarding the collection and release of patient photography.

Medical education, teaching, or publicity

Written authorization should be obtained before photographing patients for medical education, staff teaching, or publicity purposes. The patient or his / her legal representative should sign and date the authorization form. Anyone other than the patient who has the legal authority to sign should indicate his / her relationship to the patient. The signature should be witnessed, and the witness’s signature should be included on the authorization form. The signed authorization form should be filed with the patient’s medical records. A new authorization form should be signed for each new series of photographs taken by individuals other than those named in prior authorizations. The authorization given for photography remains valid unless and until the patient or his / her legal representative withdraws or restricts the authorization.

Media photography during filler injections

When representatives from the news media ask to photograph a patient, permission may be given if: (1) the patient’s physician does not feel it would be detrimental to the patient, and (2) the patient or his / her legal representative signs a written authorization form agreeing to the photography. HIPAA supports the patient’s authority to grant authorization, provided no state laws to the contrary exist.

Telemedicine or internet

Consent should be obtained before any photographs or other images are used in telemedicine or on the internet. The images, along with the complete medical record, should be encrypted to protect the patient’s privacy. Of note, the technology used in some telemedicine or internet-based programs may not support the media originally used to record the patient data. In addition, videos, scans, or photographic images may have poor resolution resulting in misinterpretations. Quality monitoring should be performed periodically to verify the quality of images transmitted.

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