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Complex circumstances

There are some circumstances where it may be difficult to be certain that you have addressed the legal issues correctly. These include clinical images that involve:

  • Children.
  • Adults with impaired capacity.
  • Intimate areas of the body.

Children

Children’s hospitals often have strict policies in relation to how and when clinical images can be taken.

When taking pictures of children, make absolutely certain that it is necessary to do so, and appropriate consent has been obtained and documented.

There is no defined age at which children can provide valid consent. For young children, their parents or guardians generally provide consent, and sign any consent
forms. If the child appears distressed at having an image taken, you will need to reconsider your position, even if the parent or guardian has provided consent.

Older children and young people under 18 years of age will need to be assessed to determine if they have sufficient maturity to understand fully the purpose for taking
the clinical images. If so, consent will need to be obtained from them, and you should encourage input from their parents. 

Adults with impaired capacity

Where an adult patient lacks decision-making capacity, consent from the appropriate substitute decision-maker must be obtained. If a patient’s lack of capacity is temporary or fluctuating, it may be better to wait until they regain capacity, and can make their own informed decision.

If no-one is available to provide consent, and treatment is urgent, the images can be taken in accordance with relevant laws about emergency treatment.

Intimate areas of the body 

Remember that particular care should be taken where images may be considered pornographic or obscene, if taken out of context. An image risks being considered pornographic or obscene if it includes unnecessarily sensitive content that is not relevant to the clinical purpose. It should be remembered that it is a serious criminal offence to disseminate pornographic images electronically. 

Ask for advice

In these circumstances, and at any time you feel uncertain about how to proceed with the use of clinical images, always contact your hospital administration or
medical defence organisation for advice related to your specific situation.