Social Media: The unconscious privacy threat
A patient who is unconscious in an Intensive Care Unit is at their most vulnerable. Often fighting for their life, the individual is not in control of their body or of their surroundings. In a busy hospital ward, an unconscious patient is seen by many people, from doctors and nurses, catering and cleaning staff to their relatives and friends.
Sharing of photographs of patients online
The prevalence of social media and mobile technology in this digital age poses a specific threat to patient privacy. Particularly if the patient has experienced emergency and trauma and is unconscious. Any posting online of a photograph of a patient receiving care without their consent is likely to amount to a misuse of their personal information and a breach of their data protection rights, as too is a description of their medical condition. An unconscious patient is unable to take part in any discussions or consent to any sharing of their personal information. The patient has been denied the opportunity to have any control over the amount or timing of the information that is disclosed, and their personal information has been shared publicly without their knowledge or permission.
Nowadays, most people carry on their person a mobile phone with an integrated camera. It takes seconds for a photograph to be taken and then uploaded online on the same device. Within minutes the photograph may have been viewed by thousands of people online. It is clear that doctors who share images of their patients over the internet without patient consent are acting outside their ethical and legal obligations. Fortunately, the scenario of surgeons posting photographs online of unconscious patients on the operating table is not common. However, there are other ways in which a patient’s privacy and confidentiality can be threatened by social media.
Well-meaning friends and relatives can take photographs of their loved one in intensive care to share with wider friends and family via social media platforms, together with the story of the patient’s injury and treatment, in order to spread the word about their circumstances and to share their own traumatic experience. In some instances, where the circumstances that resulted in the patient being in ICU are unknown, the patient’s relatives can seek to share photos and other personal information in an attempt to discover information about the events that led to their loved one’s injury. If appropriate privacy settings are not in place, these details can be shared across the world within an instant.
It is also important for family and friends to recognise that even if a patient is not identified specifically from a photograph there remains a risk of ‘jigsaw’ identification. Distinctive markings such as tattoos and birth marks can give away a patient’s identity to people that know them, as can their jewellery, clothes and even belongings surrounding the hospital bed.
At this distressing and stressful time relatives are understandably often not thinking straight and can be focussing on their loved one’s fight to stay alive and on their own emotions, rather than on the patient’s privacy rights. However, the online publication of photographs of and/or posts about an unconscious patient can be detrimental to the individual’s privacy and dignity, potentially damaging to their reputation, as well as extremely upsetting for them to learn about when they regain consciousness. An ITU patient is usually wearing only an insubstantial hospital gown which reveals much of their body and is likely to be attached to various tubes, wires and other medical equipment. They will also be showing various physical signs of being seriously unwell. This is unlikely to be an image that they are keen to share with the world. Also, the nature of the patient’s illness and/or the circumstances that led to it may not be information that the patient is comfortable with being in the public domain. An online post remains permanently discoverable on the internet, even after it has been deleted. The potential longer-term implications of such violations of privacy for the patient are rarely thought through and could have a significant detrimental impact on their life, and even their mental health.
It is also possible for well-intentioned relatives to use the patient’s own mobile phone, tablet or laptop, enabled with automatic log-in to social media platforms, to post details of the patient’s plight onto their own social media feeds, ostensibly on the patient’s behalf. This may constitute unauthorised access to computer material under section 1 of the Computer Misuse Act 1990, which is a criminal offence.
Whilst the prospect of legal action by a recovered patient against a family member or friend is unlikely, it is by no means impossible. In order to minimise patient suffering and to protect a patient’s right to privacy, it is vital that family members consider all implications carefully before publishing their loved one’s personal information online.
What is the responsibility of the hospitals in these situations?
Doctors and nurses owe a duty of confidentiality to all those that are receiving care and are under both ethical and legal duties to protect patients’ personal information from improper disclosure.
To assist them in discharging their duty of care to their patients, hospitals would benefit from adopting a social media policy which expressly covers protecting the privacy rights of patients, particularly those that are unconscious. The social media policy should include provision for some brief guidelines to be distributed to the relatives and friends of patients in ITU relating to use of social media to share information about their loved one’s circumstances. These guidelines should gently remind them of the patient’s privacy rights and provide details of online activities that may conflict with those rights, as well as listing some of the potential long term effects of sharing personal information online without patient consent.
Laura Baglow is Head of NetRights, the Social Media, Internet and Media Law department of Parnalls Solicitors. For legal advice and assistance about misuse of private information, data protection and privacy rights, including social media policies, please contact Laura at firstname.lastname@example.org or telephone 01566 772375. Find out more about NetRights here.
The contents of this article are for purposes of general awareness only and do not constitute legal or professional advice.
KATHERINE FLASHMAN KITSON CELEBRATING 25 YEARS AS A DIRECTOR OF PARNALLS
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