Reader Question: Consent must be obtained when filming your patients

Question: We require consent before we allow an outsider, such as a news crew, to videotape patients. But what about recordings made for our own purposes? We want to shoot promotional material in patient-care areas, and we’ve been told we can skip the consent process since the emergency department, for instance, might be considered a public area.

Answer: Attorneys could debate the question of whether an emergency department is a public area in which one can videotape freely, but that’s not necessary because the Joint Commission on Accreditation of Healthcare Organizations has made it clear that you must obtain consent in all cases.

In a recent clarification of existing standards, the Joint Commission states that filming or videotaping in patient-care areas is acceptable only if the patient, or the surrogate decision maker, gives permission. The clarification was included in a set of frequently asked questions and answers released by the accrediting body.

Clarification of the standard

These are some points made in the clarification of the information management standard:

  • In a situation where the patient is comatose or otherwise unable to give informed consent and no surrogate decision maker is available, the hospital may film or videotape itself or retain another to film or videotape patient-care activities within a policy stating informed consent is required before that patient’s film or videotape can be used for any purpose. Anyone who films or videotapes must sign an appropriate confidentiality commitment.
  • The film or videotape must remain in the physical possession of the health care organization and not be released to anyone else or used for educational or other purposes until appropriate informed consent is obtained. This means anyone who is not an employee of the health care organization who does the filming or videotaping cannot have the organization’s film or tape or a copy of the film or videotape until consent is obtained.
  • If the patient or surrogate does not give consent and the patient already has been recorded, the patient must be either removed from the film or videotape or it is destroyed.
  • In addition to obtaining consent from individual patients, the health care organization has an obligation to announce that filming or videotaping may be occurring when emergency services are provided. An example is posting signs that say, "Filming or Videotaping is Under Way."