e-Ethics MAY 2003
"I'm Ready for My Close-Up"
Ethical Issues in Filming Patients and Staff
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A trip to some exotic clime and
a chance to win one million dollars
may sound more appealing than
admission to your local trauma unit
or delivery suite, but in either scenario
your image could appear in
living rooms across America. The
burgeoning of "reality TV" includes
documentaries and weekly programs
featuring interactions
between patients and healthcare
providers.
Responding to increasing concern
about privacy and safety, in
June 2001 the American Medical
Association's Council on Ethical and
Judicial Affairs issued Opinion E-5.045,
"Filming Patients in Health
Care Settings." These guidelines
weigh legitimate educational objectives
that filming and subsequent
broadcast may achieve against the
requirement of informed consent.
The guidelines recommend that
dramatic reenactments be considered
as an alternative to filming
patients who lack decisional capacity.
The Council maintains that surrogate
consent is insufficient for permission
to videotape, since filming
provides no medical benefit to the
patient and thus lies outside the
scope of the surrogate's duty to
make decisions that are "medically
necessary." (Exceptions may be
made in cases where patients are
permanently incapacitated and a
parent or guardian permits filming.)
The AMA's preference for explicit
consent from the patient alone may
seem overly restrictive, but it highlights an important distinction
between privacy and confidentiality
that is frequently overlooked particularly
since the terms are often
used interchangeably.
Strictly speaking, confidentiality
entails keeping information about
patients within proper bounds.
Privacy involves bodily integrity and
protection of the patient's person
and physical space. Protocols that
allow filming before consent is
obtained may protect confidentiality
by permitting patients to prohibit
use of the footage and require its
destruction. But the breach of privacy
has already occurred because the
patient did not consent to be viewed
for the purpose of filming. The
unauthorized viewing may be forgiven,
but the patient cannot be
"unviewed." The fact that it was captured
on film goes to the issue of
compounding harm, not whether
harm has occurred.
Without referring explicitly to
the established notion of consent as
a process and not merely an event,
the guidelines follow that paradigm
by providing that patients who initially
consent to filming may later
request that it be stopped and that
the crew leave. The AMA recommends
continuation of this right to
revoke consent until "a reasonable
time period" before public broadcast,
presumably to provide time for
reflection under less stressful and
hurried conditions. Even when
patients consent to being filmed,
their safety comes first; thus
providers directly involved in patient
care may require the film crew to
leave the treatment area.
The AMA guidelines also include
information that patients should be
given prior to consent, discuss how
consent is obtained, and consider
potential conflicts of interest. They
recommend, for example, that
patients be told whether footage will
be destroyed if consent is revoked,
and told the extent to which they
will be able to view and edit what is
selected for broadcast. Permission
to be filmed should not be combined
with consent required for
medical care. In fact, the AMA recommends
that a third party unconnected
with either the care team or
the film crew obtain consent for
filming in order to avoid possible
conflicts of interest. It also recommends
that, prior to filming, members
of the crew demonstrate understanding
of the confidential nature
of health care and their willingness
to respect it.
While the AMA policy addresses
only the physician's role in filming
patients, its guidelines raise important
issues for the entire team and
institution to consider. For example,
in order to avoid conflicts of interest,
care providers should not be directly
compensated for their participation.
Additionally, in order to ensure that
potential benefits such as remuneration
or good publicity do not overshadow
the obligation to safeguard
patients, requests to film should not
depend on the judgment of a single
individual, but should be institutionally
reviewed and approved.
An important aspect of this issue
that is not included in the AMA opinion
concerns the willingness or reluctance
of care providers to be filmed, and
whether, having obtained institutional
permission, the film crew should also
obtain consent from each individual on
the care team. If the latter is not
required, may staff members nonetheless
opt out? If they may, could resulting
difficulties in staffing compromise
care? Could institutional approval
and/or departmental enthusiasm for
filming have a chilling effect on those
who would rather not participate but
may be reluctant to say so? This possibility
should be of particular concern at
teaching institutions; consider, for example,
the hapless intern or student nurse
whose rotation begins on the day of
filming.
Attending to our obligations to
patients should not obscure legitimate
concerns that some staff, particularly
those with less power and authority,
may feel reluctant to express a preference
not to be filmed. There is also the
possibility that some viewers will perceive
an invasion of privacy even
though responsible consent procedures
were followed. They might wonder, "If I
were rushed to that hospital, would they
film me?" Thus, review of requests to
film should consider whether any subsequent
broadcast would include a statement
that permission was obtained.
Even when these concerns have
been adequately addressed, questions
may remain about participating in programming
that presents human suffering
for its entertainment value. News reports
usually include information about illness
or injury prevention, new medications
and procedures, or important safety
alerts. Documentaries about specific
individuals or medical conditions typically
follow a story arc that includes the particulars
of individual cases. The new reality
programs do neither. Instead, they
feature serial presentation of illness and
injuries week after week. Do those who
consent to be filmed receive their 15 minutes
of fame, or does the repetitive content
of each episode ultimately undermine
their dignity by making them
objects of medical voyeurism? While it
may be difficult to prove that such programming
does lasting harm, perhaps
consideration of institutional participation
should require more—reasonable anticipation
of a positive good for patients and
the community.
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