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Get smart: clinical images and smartphones

Ruanne Brell, BA LLB (Hons), Senior Legal Adviser, Advocacy, Education and Research, Avant

Thursday, 23 May 2024

User on phone

Originally published in October 2022 and updated in May 2024

The scenario

A medical student in the emergency department at a busy public hospital sees a patient who has been in a fight. His x-ray is pretty impressive; all five fingers are shattered. After taking a photo of the x-ray on his smartphone he proudly shows some of his friends at a BBQ the next day. The x-ray includes the patient’s name and date of birth. Is this a good idea?

Clinical images and smarter alternatives

There are numerous laws, regulations and policies that govern how personal and sensitive health information can be collected, disclosed, stored and secured. While the law does not specifically preclude using smartphones to capture clinical images, there are some particular issues with using personal phones that mean it may be preferable to have a camera or phone that belongs to the workplace if you are taking images regularly.

There are certain procedures and processes you need to follow to ensure a patient’s privacy and confidentiality is not breached in the context of clinical images. Working in a hospital, you also need to follow any relevant hospital policies that cover the use of smartphones.

Depending on the circumstances, use of clinical images by doctors may be regulated by the Commonwealth Privacy Act 1988 (the Privacy Act), state-based health records and privacy legislation, the Ahpra’s Advertising Guidelines and the Medical Board of Australia’s Good Medical Practice: A code of conduct for doctors in Australia.

In the scenario above, the medical student took a photograph of the x-ray because it was unusual – it was not taken for the purposes of providing care. What did the student intend to do with the image, and did they discuss it with the patient?

When taking a clinical image, you need to obtain the patient’s consent, and explain to the patient the purpose of taking the photograph, how you intend to use it, and who is likely to see it.

What if you can’t identify the patient in the image? If the image is de-identified and does not include any personal information the privacy legislation doesn’t apply. You do, however, need to ensure it’s completely de-identified – the rare or unique characteristics that you are interested in may be identifying features.

What else should you do?

  • Record patient consent

    Document the patient’s verbal consent relating to the clinical photograph in the patient’s medical record, or check if your workplace requires written consent. You should also check any other relevant policies to guide you in how you use clinical images. 
  • Secure the image

    Take reasonable steps to prevent any unauthorised access to the image. For example, security codes, passwords, and remote erasing capability are likely to be considered reasonable steps. Disable any automatic processes that would upload images to a social network or back-up sites.
  • Add the image to the patient’s file

    As soon as possible, the image should be incorporated into the patient’s medical record, with a note about the consultation and diagnosis. Then it should be immediately deleted from the personal  device.
  • What would be appropriate?

    It’s okay to use a clinical image to facilitate treatment for a patient and to help with their clinical management. It may also be appropriate to use clinical images and other information for writing case reports and educative purposes, if the patient provides their specific consent for this purpose.

    Showing friends at a BBQ a patient’s impressive x-ray with or without their consent? This is always unprofessional.

Key lessons

  • Clinical images, including photographs taken on your personal smartphone, form part of the medical record and are subject to the same requirements as all other parts of the medical record.
  • Make sure you have the patient’s consent to capture and use  a clinical image and their consent is documented in the medical record.
  • If using your smartphone, ensure the image is uploaded into the hospital record and then securely delete the image from your phone.
  • You should review the practice or hospital protocols to understand what their policies are.
  • If using your smartphone, carefully consider your settings to make sure you protect it with strong security settings such as passwords.
  • Do not post clinical photographs to social media or share them in ways not contemplated in the consent process, regardless of privacy settings.

Useful resources

Avant flowchart: Taking a clinical image.

Avant flowchart: Using a personal device for communicating at work.

Avant factsheet: Clinical photography - a snapshot of the issues.

Avant factsheet: Privacy: the essentials

The AMA and MIIAA Clinical Images and the use of personal mobile device: A guide for medical students and doctors.

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The case discussed in this article is based on a real case. Certain information has been de-identified to preserve privacy and confidentiality.

IMPORTANT: This publication is not comprehensive and does not constitute legal or medical advice. You should seek legal or other professional advice before relying on any content, and practise proper clinical decision making with regard to the individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgement or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Avant is not responsible to you or anyone else for any loss suffered in connection with the use of this information. Information is only current at the date initially published.

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