== What is confidentiality ==

There is no legislation relating to confidentiality. However there is a body of case law upon which a claim for a breach of confidentiality can easily be based. A person is entitled to protect his own legal secrets. This applies equally to business and trade secrets (Cassell D 1989).

The essential premises for breach of confidence are:

1. Information which has been imparted to another person must have the necessary “quality of confidence”.

2. Information must have been imparted in circumstances imposing an obligation to keep the information confidential.

3. Must be unauthorised use of that information to the detriment of the party who communicated it to another person in confidence.

The important phrase, in part 3 above, is unauthorised use. This is the essence of consent that a patient is letting you have a certain ‘authorised’ use of material pertaining to their health status.

There is no confidence in iniquity includes misconduct generally ie. confidential information of a breach of the law does not have to be kept confidential. This defence of public interest would apply in cases of patients suspected of obtaining medical treatment under false pretences, Munchausen’s syndrome or Munchausen’s syndrome by proxy, where you can quite legitimately publish their photograph and send it round to other hospitals. Consent to photography in these cases may well be difficult to obtain (Gilson CC et al 1984) in a written form but could be implied as they are presenting themselves at the hospital.

'''Duty of confidentiality'''

To whom do we owe a duty of confidentiality?

We owe a duty of confidentiality to:

  - Patient
  - Consultant
  - Colleagues
  - Head of Department
  - Employer/Health Authority or Trust

There is an implied obligation for a medical photographer working for a health authority, trust or independently to keep confidential any information they have relating to patients.
This is also expressed in codes of conduct eg. for the [htp://www.camip.org.uk/ The Committee for the Accreditation of Medical Illustration Practitioners]:

''“Treat with discretion, all confidential information relating to patients gained in the practice of his professional work, and never disclose such information, be it in aural, visual, audiovisual, digital, written or verbal form (including the physical material in which that information is contained) to any person, unless it be with the permission of the patient or other person authorised to release it;”'' (The Committee for the Accreditation of Medical Illustration Practitioners April 2004)


Confidentiality works both ways; patients have no right of access to their own photographs. We owe a duty of confidentiality in this regard to the consultant or whoever requested the photographs. Private patients have no more right to see their medical records than  NHS patients. They are however entitled to see any X-rays and any consultants report if they have paid for these separately (Hessayon A 1983). Similarly a patient may be entitled to see any clinical photographs he has paid to be taken.


'''Confidential material'''

What happens to clinical material is an important aspect of confidentiality from the camera to the medical illustration department to being added to clinical notes, copied or published.

An added danger that is with us now but is becoming more widespread is the holding of clinical illustrations on computers and computer networks. Without appropriate safeguards breaches of confidentiality can occur.

'''Care of confidential material in the medical illustration department'''

Guided reflection exercise here needed.

What happens to confidential material once it leaves the camera as an exposed roll of film until it leaves the medical illustration department as a slide or print is our responsibility (Gilson CC et al 1984, Cull PG et al 1986).
What happens to film, prints and videotapes in and out of your medical illustration department and who is likely to have access to them?
Internal processing    External processing

Disposal of waste    Who sees material around
transparencies and prints    the department?

Distribution of material to consultant

There are no exact answers to these questions as it depends on the procedures that have or have not been laid down in your hospital.
Your answers might include the following:
Internal processing    External processing
Photographers only     Secure service guaranteed
Clerical staff    Internal only
Cleaners    Variable population of employees
Visitors    at the laboratory
Medical staff
Disposal of waste    Who sees material around
transparencies and prints    the department?
Shredded    Everybody
Incinerated    Cleaners
Incineration personnel    Photographers only
Ordinary waste    Medical staff generally
Sealed waste bags    Office staff
Audio/videotapes electronically erased
Distribution of material to consultant
Post - internal mail
Sealed or unsealed envelopes
Hand delivery
Special seal or security tags and signed for
Secretaries
Medical records
Staff on wards


Holders of confidential material

Who holds any confidential photographic material can be important. Who is responsible for the use of such clinical material will depend on who holds it. We have control of confidential material while it is in the medical illustration department but once it leaves we have little control.

This situation arose during the Cleveland ‘crisis’.

8.7.97    On the 25th June Dr.Higgs and Dr.Wyatt delivered immediately about 70 sets of case notes, and they were reminded of the need to supply the photographs.

8.8.44    She felt the need to keep some sensitive information such as case conference notes and records, photographic slides, and information from parents and from children in her office rather than in the medical notes which were much more accessible. She adopted the same practice in cases of physical and emotional abuse. . .(Butler-Sloss E 1988)

Photographic records were treated as a separate entity to the clinical notes. It should be paramount that clinical photographs (slides and prints) where they are being used or have been used to aid diagnosis or are needed for medicolegal evidence should be regarded as an integral part of the patient’s notes and not filed or kept separately (Bryson D 1990).
''
“Clinical illustrations are regarded like X-rays as part of the patient’s primary health records.”'' (DHSS 1983)

The distinction between slides specifically produced for teaching purposes and clinical/diagnostic records which could also be used for teaching purposes but whose primary function is patient related does tend to become blurred.

As consultants and doctors are inclined to build up personal slide collections there should be precise guidelines about who is responsible for holding clinical photographs, if this occurred with radiographs it would be clamped down on very firmly and speedily. Ideally the material should be held by the medical illustration department and released on a loan basis, but this in itself would present many practical problems (IMBI 1985).

When a consultant or registrar moves on with their “slide collection” this can cause added problems (Gilson CC et al 1984). Ultimately the material belongs to the health authority or trust not the consultant.

== Disclosure of information ==

'''Consent to disclosure'''

The Department of Health’s view is that:

''“  . . photographic clinical records form part of the medical record of the patient and as such are subject to the same rules of medical confidentiality as any other part of that record. That is to say they cannot be disclosed to anyone without the consent of the clinician responsible for the patient and, at his discretion, the patient himself.”'' (DHSS 1976)

The view as above, that disclosure is with the, ''“consent of the clinician responsible for the patient and, at his discretion, the patient himself.”'' (DHSS 1976), means that disclosure is primarily up to the consultant, then secondarily the patient.
It is up to the consultant to decide whether the patient should consent as well. If it is a matter of publication the patient would be asked but if it related to a legal situation disclosure could be made without asking the patient eg. the patient had been injured while breaking the law or abuse is suspected.

The same applies to consent for disclosure as to obtaining consent generally (see section on [[Consent]]). So unless a child is able to consent the parent would have to consent. The consultant may not need to ask the parent if he considers the child is at risk.

''“However, in cases of alleged sexual abuse, complex questions arise because of the conflict between professional ethics and public interest in the detection of child sexual abuse. Much depends on who is the patient and to whom the confidentiality is extended. Nevertheless, the doctor has to reconcile the extent to which confidentiality can be maintained, in the face of the best interests of the child.”'' (Independent Second Opinion Panel 1988)

Again children considered old enough or having sufficient understanding should give their permission or assent for confidential information to be disclosed.

'''Forensic v’s therapeutic'''

The courts draw a definite line between material and examinations considered therapeutic and forensic.

Forensic from a dictionary definition means:

''“of, characteristic of, or suitable for a law court, public debate or formal argument.”'' (Guralnik DB 1978)

Brahams D in 1987 reported:

''“The disclosure to the police of the medical records and recordings for the purpose of criminal investigations was a major step in the ward’s lives and was outside the duty of day-to-day care undertaken by the local authority.”''

If a request is made to the medical illustration department for copies of slides or prints by the police unless it is authorised by the consultant concerned and sanctioned by the health authority they should not be released. The release of such material is a serious step for the patient. It is also debatable whether we should release the original material or only copies or prints made from them. The police have been known to lose original material.

'''Litigation to which the health authority is not party'''

Where disclosure is sought for proceedings not involving the health authority, ie. regarding road traffic accidents or injuries at work, which may help the patient in a case against another party. Confirmation will generally be needed that no action is contemplated against the health authority and that the patient consents to their release.
The guidance notes in this area (Annex A to HC(82)16, extracted from HM(59)88) suggests there should be consultation with the doctor or dentist in charge of the patient, or his successor, at the time of treatment (Capstick B 1985).

If the request comes from the defendants solicitors to the patient’s action no disclosure can be made without the patient’s consent. If the patient withholds this the solicitor must apply to the High Court for the health authority to release them.
Records obtained in this way are usually only released to the patient’s medical adviser not to the patient or his solicitor directly.

'''Access to Medical Reports Act 1988'''

This Act, which came into force on 1st January 1989, allows people who have reports written about them for insurance or employment purposes to have access to those reports prepared by the medical practitioner (GP or consultant) who is or has been responsible for the clinical care of the individual (BAAF 1990). Allows them to consent or withhold consent to the report being made.
This Act deals with medical reports only and not medical records in general.

== Privileged information ==

Absolute privilege protects statements made by a client to his solicitor and in the case of the NHS reports or material evidence made by employees on behalf of the health authority. Any work undertaken by an employee by the nature of the relationship is privileged.
Photographs taken of hospital personnel, patients, relatives or members of the general public involved in accidents in the hospital are for the health authority’s benefit and as such are privileged and cannot be released without the health authorities permission (NHS 1955).

The guidance notes on reporting accidents in hospital state:

''“4. If these reports and statements are to be of full value to the hospital’s solicitor it is essential that they should be confidential and privileged documents. In order that professional privilege may be claimed for them they must be regarded as, in essence, communications between the hospital’s solicitor and his client.”''

''“6 No report or copy of it should be given to any member of the staff concerned in the occurrence....”'' (NHS 1955)

If a case is brought by an employee or patient against the health authority any  photographs would need to be obtained by their solicitor through the discovery procedure (Capstick B 1985).

'''Publication of confidential information'''

'''Breach of copyright'''

This is an important weapon in preventing the publication of confidential material ie. if a document or photograph is leaked to the press the originator holds the copyright so can sue for wrongful use.

When publishing a paper the author will be asked to assign copyright. If he does not own the material he will need to obtain permission from the copyright holder ie consultant and health authority.

== Protection of patient anonymity ==

Guidelines from the Vancouver Group, the International Committee of Medical Journal Editors, were agreed in February 1991 for the protection of patient anonymity in published papers:

1. Detailed descriptions or photographs of individual patients, whether of their whole bodies or body sections (including physiognomies), are sometimes central documentation in medical journal articles. Use of such material may lead to disclosure of patients’ identity, sometimes even indirectly by a combination of seemingly innocent information.

2. Patients (and relatives) have a right to anonymity in published clinical documentation. Details that might identify patients should be avoided unless essential for scientific purposes. Masking of the eye region in photographs of patients may be inadequate protection of anonymity.

3. If identification of patients is unavoidable, informed consent should be obtained.

4. Changing data on patients should not be used as a way of securing anonymity.

5. Medical journal editors ought to publish their editorial rules for accepting publication of detailed description of individual patients and photographs. When informed consent has been obtained by authors this should be clearly stated in the article.

Masking off the eyes with a black strip or other methods of disguising identity only work when the subject is unknown to the reader and can also obscure essential clinical detail (Slue WE 1989, Smith J 1991). The only realistic solution is to ensure that informed consent has been obtained prior to publication (Nylenna et al 1991).

== Data Protection ==

The purpose of the Data Protection Act is to regulate the use of automatically processed information relating to individuals and the provision of services in respect of such information’ and is based on two fundamental concepts;

The need to know and

a person’s right to confidentiality

Information about a patient should only be kept for the purpose of health care and release of that material should only be for the purpose of health care. The Act does not affect the use or disclosure of manually held records.
There are exceptions to this when information may be obtained (Hawkins C 1985).

1. Notification of infectious diseases under Public Health Act.

2. A court orders disclosure.

3. Disclosure authorised by an ethical research committee. Anonymity must still be preserved.

4. Prevention and control of communicable diseases.

5. Prevention and detection of serious crime or to help bring a person to justice.

Anyone who controls the use and contents of computer health data must register under the Act as a data user. Patients and doctors can inspect the register which details the uses to which this data is put. External organisations such as the police are excluded from consulting a patient’s records held on NHS computers.

Individuals are entitled to reasonable access to personal data and to have such data corrected or erased where appropriate.
''
“A data subject, ie. the person to whom specific data relate, is to be compensated if he/she suffers damage because the data are inaccurate, lost or disclosed without authority.”'' (Chisnall PM 1986)

As more medical illustration departments use computers for keeping patient records and actual patient illustrations on disk or CD-ROM so we could be liable under this Act for the unauthorised use of such data.
A booklet about the act, Guideline No 1: An introduction and guide to the Act, published in February 1985 is available from the Data Protection Registrar, Springfield House, Water Lane, Wilmslow, Cheshire, SK9 5AX.

== Freedom of information ==


== Resources ==

'''Weblinks'''

[http://www.camip.org.uk/docs/CAMIPcode.pdf The Code of Conduct and Disciplinary Procedure]


'''References'''

Austin I Humphreys BL Clayton PD Kohane IS Hoffman LJ Geisslerova Z. (1996) Confidentiality of Electronic Health Data: Methods for Protecting Personnal Identifiable Information. Maryland: National Library of Medicine. [http://www.nlm.nih.gov/archive/20040829/pubs/cbm/confiden.html Online publication]

Brahams D. (1987) Child sexual abuse: Disclosure of medical records and consent to examination for purposes of police investigation. The Lancet; 2: 1099.

Bryson D. (1990) Medical illustration and the report of the inquiry into child abuse in Cleveland, 1987: a commentary.

Capstick B. (1985) Patient complaints and litigation. Birmingham: National Association of Health Authorities in England and Wales.

Cassell D. (1989) The photographer and the law. London: BFP Books, 2nd ed.

Chisnall PM. (1986) Marketing research, 3rd edition. London: McGraw Hill Book Co.

DHSS. (1976) Legal responsibilities of medical photographers and medical artists within the National Health Service.(Letter) Ref. H/H256/15. IMBI Information sheet 2; April.

Gilson CC Green P Cull PG. (1984) Confidentiality of illustrative clinical records. J Audiovis Media Med; 7: 4-9.

Guralnik DB, ed. (1978) Collins Concise English Dictionary. London: Collins.

Hawkins C. (1985) Mishap or malpractice. Oxford: Blackwell Scientific Publications, Chapters 7 & 8.

Hessayon A., ed. (1983) A patients guide to the National Health Service. London: Consumers’ Association/ Hodder & Stoughton.

IMBI Council. (1985) The responsibility of professional medical illustrators in preserving patient confidentiality. IMBI Information sheet 8; January: 3.