What do patients need to know to be able to give consent?

Consent procedures in medicine are designed to protect the patient, the hospital and the medical practitioner.

The basic elements of information needed in the USA for consent were defined by the US Department of Health, Education and Welfare in 1978 as follows (Hawkins C. 1985):

1. A fair explanation of the procedures to be followed, and their purposes, including identification of any procedures which are experimental.
2. A description of any attendant discomforts and risks reasonably to be expected.
3. A description of any benefits reasonably to be expected.
4. A disclosure of any appropriate alternative procedures that might be advantageous for the subject.
5. An offer to answer any queries concerning the procedures.
6. An instruction that the person is free to withdraw his consent and to discontinue participation in the project or activity at any time without prejudice to the subject.

Is this quantity of information in excess of the needs of a patient going to see a medical photographer?

Photography is not life threatening and the only physical side-effect is spots before the eyes from the flash. In fluorescein angiography it is not the photography that is dangerous but the drugs that are administered by the doctor.

What do our patients need to know to be able to give their consent for photography?

In simple terms they need to know What, Why and Who

• What the procedure is
• Why it is necessary
• Who will see the photographs afterwards

The “what” should be contained in your explanation to the patient before you take your photographs. This should normally be part of your principles of good practice (Bryson D 1994). The “why” and “who” are closely linked. If the photographs are to be published in a medical journal, then the extent of sharing of the illustration, “who” sees them, will be greater than for purely clinical records.

Would you agree to photographs taken of you being put to the following uses?

• Clinical records
• Medical research
• Medical education
• Published in a medical journal
• Published in a national magazine
• Shown on national television

As photographers we are notoriously averse to being photographed. I doubt if many of us would say “Yes” to all six uses.

In the same way we have to be careful not to go too far in asking for too wide a range of uses from our patients. Our own willingness to say “Yes” depends on who we think will see the photographs, the same is true for patients.

The use is directly related to who is likely to see a photograph:

• Clinical records Hospital personnel only
• Medical research Readers of specialist journals
  
• Medical education Medical community in general
  
• Published in a medical journal Medical community in general
  
• Published in a national magazine General public
  
• Shown on national television General public +++

Clinical records might be seen by about 5 or 10 people; an illustration in the British Journal of General Practice by 18,000 people and in the Woman’s Own by 782,362 people including your friends and neighbours.

So the purpose for taking the photographs, the “why” directly affects the number of people who might see the resulting images.

Guided reflection exercise - [[Who might see your records?]]

The extent of sharing of images is very variable. Some slides may never make it out of the consultant’s drawers or filing systems. Others may be seen by an international medical audience. It is important for a patient to know how an image may be used but it is equally as important to make sure no patient is put off by the remote possibility that a photograph will be seen by the general public.

The wider the range of coverage you include the less likely a patient is to give their consent.

What kind of range of use is really needed?

How often do we need to have consent for publication? How often are we asked for black and white prints for publication? The ratio of photographs used for publication in a DGH will tend to be small about 1:1,000 or less, will depend on the hospital’s and consultant’s specialities. (Accurate figures for this would be useful. How often are photographs for publication needed?)

A patient who attends a teaching hospital will probably accept the wider use of his photographs more easily than someone visiting their local district general hospital.

What Type of Consent?

Consent is either implied or expressed. Expressed consent is further divided into oral or written.

Implied Consent

This is also termed tacit consent. The patient comes into the hospital or doctor’s surgery, so it is implied that they will accept all that happens. If this was not accepted, medical practice would come to a halt. If a patient turns up at the medical illustration department, this implies that they are willing to be photographed. A medicolegal photographer receives the client’s implied consent via the solicitor’s letter of instructions (Bryson D 1994).

Expressed Consent

This can be put into words either in writing or by word of mouth. This is better than implied consent and written is preferable to oral, as it is easier to prove as evidence.

Oral Consent

Consent by word of mouth. A patient is asked if they mind being photographed and they verbally agree to this. A precaution in the clinical situation especially for an operation is for this to be written on the patient’s card or notes and the name of witness, if any. A doctor and nurse would both sign so a patient cannot forget or deny having been asked.

Written Consent

Consent can be obtained in writing or by the signing of a form which details exactly what is going to be done including the possible extent of sharing information with medical photography. This is necessary even for minor operations or procedures, eg. fluorescein angiography (Coppinger JM et al 1988), including new procedures and research.

Other Methods

Expressed consent can also be obtained by audiotape, video or electronic recording.

What is meant by informed consent?

This simply means that the patient makes their decision after being fully informed.
The dilemma of how much to tell or not to tell a patient in terms of medical treatment or operations is for the consultants and doctors to be concerned about (Hawkins C. 1985). As medical photographers there is no reason why a patient coming for photography should not be fully informed as to why photographs are being taken and the extent of sharing possible.

The Department of Health’s position used to be that clinical illustrations were regarded as part of the patient’s primary health records. As such;

“Illustrations required for diagnostic purposes and only available to the health care team caring for the individual patient would not specifically require that patient’s consent.” (DHSS 1983)

 

i.e., the consent for clinical records is implied. When illustrations are used for other purposes specific consent for this would be required either before photography or after they were obtained as clinical records.

''“Medical ethics would normally require the patient’s consent to be obtained prior to the disclosure of identifiable health information for a purpose other than that for which it was obtained, for example if illustrations were used in articles or during lectures to medical students. If there is the possibility that medical illustrations will be used for such educational uses it is wise to obtain the patient’s consent to such a use at the time the illustrations are prepared.”'' (DHSS 1983)

This led to the suggestion of obtaining two sets of consent one for the patient records and the other for teaching or research purposes (Jones B 1994).

The Department of Health position has changed and consent for clinical photography now needs to be written informed consent. See Department of Health website about consent policy and key documents.

[[Test yourself on types of consent]]

What is our authority to ask for the patient’s consent to photography?

This might equally be entitled who's responsibility is it to obtain informed consent for photography?

Medical practitioners registered under the Medical Act 1983 are entitled to perform illustrative work as part of patient care (NETHRA 1987). The consultant or doctor may delegate the responsibility to the medical illustrator, in which case we will be acting ‘in loco doctoris’ (in place of the doctor).

It will vary from hospital to hospital whether the doctor actually obtains the patient’s consent before sending them to the medical illustrator. Routinely it is the doctor’s responsibility to obtain consent but again this may also be delegated to us.

References

 Bryson D. (1994) A guide to medico-legal photography for personal injury claims. J Audiovis Media Med; 17(1): 5-11. (1.88 MB)
Department of Health and Social Security. (1983) DHSS Ref CFD/11, March. IMBI News 1983; April: 5.

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

Jones B. (1994) Ethics, morals and patient photography. J Audiovis Media Med; 17(2): 71-6.

North East Thames Regional Health Authority. (1987) Accreditation of personnel involved in the production of illustrative clinical records. NETHRA (Audiovisual Advisory Committee); Personal communication.