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Clinical photography is an integral part of dental clinical practice. It is valuable as a communication tool, a record of pre-treatment conditions, evidence of results achieved and, between those start and end-points, a step-by-step measure of progress or change over time.

Obligations

While the advantages of clinical photography are many, these need to be balanced with a dental practitioner’s ethical and legal duty to respect a patient’s right to privacy and confidentiality regarding their personal and health-specific information as well as the patient’s independence in determining how that information should be used.

It is essential that practitioners understand what is required when obtaining clinical photographs, as well as the permissible uses of the photographs (particularly with respect to teaching, education, research and also advertising).

Patient information (including photographic images) can only be collected for inclusion in a record where it is necessary for the purpose for which it is collected.

A clinical photograph will be considered part of a patient’s health information and therefore needs to be retained for the same length of time as any other element of their dental records:

1. in the case of health information collected while the individual was an adult – for 7 years from the last occasion on which a health service was provided to the individual by the health service provider
2. in the case of health information collected while the individual was under the age of 18 years – until the individual has attained the age of 25 years.

A practitioner should satisfy themselves as to whether it would be prudent to retain images beyond the specified minimum period.

In Australia, although a patient’s records will generally be owned and possessed by the dentist or practice in which the records were generated, under the Health Records and Information Privacy Act 2002 (NSW) patients have a right to access and to obtain copies of their records. There are only limited circumstances where access can be denied. It is always sensible to assume that access to the images may be sought at some stage. A dentist should keep in mind their legal obligations for storage and patients access rights, and that stored information may be accessed for use in legal proceedings arising from patient complaints.

It is essential therefore that photographs taken should be of an appropriate diagnostic quality. Care should be taken with respect to appropriate electronic security to ensure confidential transmission of digital images, and they should only be accessible to the clinicians involved in the patient’s care. All reasonable measures should be implemented to ensure that they are not transmitted erroneously to third parties.

Informed Consent

Consistent with both state and Australian federal law, consent must be actual and informed, and the product of a comprehensive discussion with the dental practitioner, free of coercion and made by a patient who has the capacity to do so.

The patient must be informed or be aware beforehand of the reason for the collection of the information, the way it is likely to be used and to whom it is likely to be disclosed. By way of example, a patient may give specific consent for photographs to be taken for clinical management/monitoring and also conveying clinical information to other members of a treating team. That consent, however, may not necessarily apply to any other uses of the images (examples, though this list is by no means exhaustive, would include educating other dental colleagues, demonstrating procedures or outcomes to other patients, and advertising or promotional material).

Where copies of records are in the possession of third parties, those third parties should be made aware of the limitations of use provided by the initial patient consent.

Consent is more than a signature at the bottom of a template consent document. If documenting consent (such as is prudent for education or research purposes), we recommend obtaining a purpose-specific written informed consent before taking photographs. It should be clear to the patient that they may revoke their consent at any time, and provision should be made to allow patients to do this.

A good consent document will typically contain many or all of the following elements:

• Date
• Practice details
• Patient details (surname, first name, sex, date of birth)
• Primary purpose statement
• Types of images (radiographs, intra- and extra-oral photos)
• Privacy/security statement
• Secondary purpose statement (staff training, education of other practitioners, practice marketing, patient education)
• Option for patient to select specific secondary purposes
• Statement regarding reasonable steps to de-identify
• Statement about sharing images with others
• Opportunity for patient to change mind and withdraw consent
• Statement that an image placed in public domain cannot be withdrawn once published
• Signed, dated and witnessed (witness name and signature)

It may be prudent to show the images to the patient before using them. It is also recommended that the patient be given a copy of the completed consent documentation.