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Taking pictures of clients: is it ever OK?


Marisol, a home care nurse is scheduled to visit Jack, a client who lives alone and has difficulty managing his self-care. Jack is due to have a dressing change for a stage II skin ulcer on his right arm.

 

Rolling up Jack's sleeve to examine the ulcer, Marisol notes that there is purulent discharge. She recommends that Jack have the nurse practitioner at the local client examine the wounds. Jack declines.

Marisol makes a decision

Marisol is concerned about follow up care as she will be away for the next few weeks. Without consulting with Jack, Marisol takes a picture of the wound with her personal phone, includes a description of the care she provided then emails it to the clinics nurse practitioner.

What did you think of Marisol's actions?

  • Was it appropriate for Marisol to take a photo of Jack's wound?
  • Did Marisol have Jack's consent to take the photo?
  • Was it appropriate to send the photo to the NP even though Jack had declined Marisol's recommendation to visit the NP?
  • How would you respond if Marisol asked you what you thought?

While Marisol had good intentions, taking a picture without consent breaches Jack's privacy and confidentiality. Marisol doesn't explain to Jack why  the photo is needed, and doesn't get Jack's consent to take it or share it with colleagues. Marisol needed to get Jack's consent prior to taking and sharing the photo explaining why a photo of the wound was needed and who it would be shared with. Marisol breached Jack's privacy and the Professional Standards/RPN Code of Ethics by taking a photo and sharing it without consent. Marisol may have also violated the Freedom of Information and Protection of Privacy Act by allowing personal information of a client to be stored outside of Canada.

What is obtaining consent?

Consent is valid only if clients understand fully how their personal health information is to be used or disclosed. This information must be presented to the client before consent is obtained.

The Health Care (Consent) and Care Facility (Admission) Act sets out some criteria for valid informed consent to health care. An adult is considered to have consented when:

  • The consent relates to the proposed health care
  • The consent is given voluntarily
  • The consent is not obtained by fraud or misrepresentation
  • The adult is capable of making a decision about whether to give of refuse consent
  • The health care provider gives the adult the information a reasonable person would require to understand the proposed health care and to make a decision:
    • The condition for which the health care is proposed
    • The nature of the proposed health care
    • The risks and benefits of the proposed health care that a reasonable person would expect to be told about
    • Alternative courses of health care, and
  • The adult has an opportunity to ask questions and receive answers about the health care

Express consent is written or spoken permission directly communicated to the health care provider about proposed actions. Express consent demonstrates to the health care provider that the client understands what is being proposed. Signing papers, oral or verbal communication such as saying, "Yes, I consent" is an example of express consent.

Implied consent assumes permission is given based on a client's actions and the circumstances of a particular situation, rather than on their direct written or spoken agreement (e.g., client rolls up sleeve when nurse reaches for blood pressure cuff, or is silent to a proposed action).

Nurses recognize that consent may be given verbally, in writing, through an alternative communication system (e.g., computer assisted) or through behaviour that implies consent. Implied consent is not shown by a client's non-action (e.g., not moving their arm away) but from active participation (e.g., offers their arm to support the nurse completing a diagnostic test). In order to reduce the risk of misinterpretation of implied consent, nurses should seek verbal affirmation prior to nursing care.

Mobile devices and client health information

Marisol also likely breached her employer's policy by using a personal device to store and share client information. As mobile devices themselves store and retain data (often outside of Canada), there is the potential for unauthorized disclosure of clients' personal health information. Without correct encryption, any emails, voicemails, texts, pictures or audio on portable devices (including memory sticks) could be inappropriately accessed or disclosed if the device is lost, stolen or inadvertently viewed. Follow your employer's policies for mobile devices and client health information or speak to your organization's privacy officer.

Email messages, texts, photos, and audio recordings taken on or with a mobile device—within the context of approved employer policy—should be stored electronically or printed in hard copy and transferred to the client's health record.

If your agency does not have a policy regarding the use of mobile devices, discuss the situation with your colleagues and manager to advocate for resources and policies related to the use of technology that could improve client care.

What could Marisol have done differently?

While Marisol's intention was to support continuity of care for Jack,  standards related to privacy and confidentiality, consent and her nursing designation's Professional Standards  and/or Code of Ethics, as well as agency policies and legal processes, need to be followed. These include:

  • Obtaining Jack's consent to be photographed and to share the photo with colleagues and the clinic NP.
  • Documenting that Jack's consent was received.
  • Following the Privacy & Confidentiality and Consent practice standards and agency policies for client consent related to taking and sharing personal health information with other health care professionals.
  • Following agency policies related to use of personal devices and texting or emailing client information.

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