Clinical law updates
On these pages I discuss the clinical law on which our nursing and medical staff rely when caring for our patients.
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Mr Robert Wheeler, director, department of clinical law
Unwelcome photography in NHS hospitals
It is not unusual to encounter a patient or relative using their phone to take photographs within the hospital. It could be that from their perspective, no harm has been done. However, we are anxious to protect the rights of both patients and staff. To what extent can we prohibit unwelcome photography?
The hospital is perfectly entitled explicitly to prohibit photography, and display posters to that effect. Perhaps we should include this prohibition in the information that we provide to patients as they enter, either for elective or emergency treatment, incorporating this into a ‘contract’ of mutual expectations. If a photograph is then taken despite this ban, we are fully entitled to request that the image is deleted, although have no power to insist on deletion; or to remove the device or the memory card.
The laws in England regarding photography are liberal. Citizens are entitled to do anything which is not prohibited by the law. For this reason, it is not possible to prevent your photograph being taken in a public place, unless the image is being taken for purposes of crime or terrorism. However, if despite being asked to stop the photographer continues persistent or aggressive photography, if the course of his conduct causes you alarm or distress, this may be considered as harassment.
Citizens can expect privacy inside their home or garden, so photographing a person when they have that expectation may lead to a breach of civil privacy laws. If the photograph could be considered defamatory, the victim might pursue the photographer in the County Court. In either case, the victim may if successful in litigation recover money in ‘damages’.
The laws in England regarding public or private places are relevant here. There is no single legal definition of ‘public place’ that is adopted by the various relevant statutes, although at least one Act defines it as ‘…any premises or place to which …the public have or are permitted to have access…’ which would of course include hospital premises. However, places ostensibly to which the public have access, such as churches and museums may own the land, making these a ‘private’ setting; this has a significant effect on the need for permission to take photographs. This is reflected by the civil laws of privacy, allowing the landowners to sue photographers who take images on their land without prior consent.
So where does this leave the hospital? Putting aside whether a NHS Foundation Trust is a public place, and whether within it there is a general right of privacy, the European Convention on Human Rights Art. 8 provides for a right to respect for a private and family life. Accordingly, the patient in hospital has a reasonable expectation of privacy.
The privacy element will be immediately engaged if there is a patient who inadvertently forms the background of the unwanted image taken in the hospital. This may be on the ward, in a corridor, or within a clinical department such as radiology. It is perfectly possible her identity may be revealed by her appearance, to those who recognise her. There may be outwardly obvious signs of illness, such as jaundice or emaciation, which she wishes to remain confidential. Should her written name appear in the photograph, identification will be instant. Written details on her notes may also be in view, compromising her confidentiality further.
Our staff can and should object to being photographed without their consent. In the course of their employment in the hospital, where patient confidentiality is of such great importance, the staff can share the reasonable expectation that at work they will not be photographed without their consent. Their rights as citizens are not diminished by the fact that they are at work. They are fully entitled to request that the image is deleted, although have no power to insist on deletion; or to remove the device or the memory card. However, they remain free, as private citizens, to take civil action against unwelcome or intrusive photography performed without their consent.
The Criminal Justice & Immigration Act 2008 s119 may also provide us with some help. It relates to visitors (although not the patient himself) who (i) causes ‘nuisance and disturbance on NHS premises to a staff member and (ii) refuses to leave the premises when asked to do so.
In plain English, the reasonable onlooker may well conclude that unauthorised photography in a hospital setting is a ‘nuisance’; and the confrontation that follows, a ‘disturbance’.
The Act does not define what behaviour amounts to nuisance or disturbance, but the subsequent DoH guidance provided an inexhaustive list, which amongst others includes ‘…Generally preventing or impeding staff from carrying out their duties’; and ‘…Failing to comply with any reasonable request to stop a particular activity which may be endangering other persons…’ It seems likely that distracting staff from clinical duties by compromising confidentiality and causing staff alarm or distress could endanger patients.
The Act provides police constables and authorised (appropriately trained) NHS staff with power to remove with reasonable force persons reasonably suspected of committing an offence under s119. Again, it must be noted that a person seeking medical advice, care or treatment cannot by definition commit the offence, but patients who are refusing to leave having been discharged, or who are returning to hospital shortly afterwards are capable of committing the offence.
This allows the hospital to use its own authorised staff to remove individuals who are causing a nuisance or disturbance (as defined by the DoH), and may serve as a deterrent.
Department of clinical law, May 2021