Is taking this photo a HIPAA violation?

[Nurse Beth, MSN]

Depending on whether it could be used to identify a patient, the intent, and who it was shared with, it could be.

At worst, this is a HIPAA violation. At best, it is a potential HIPAA violation, demonstrates poor judgment, and violates patient privacy and dignity.

From an employer's point of view, the photo is a liability. Even if it is not a HIPAA violation, no employer wants unapproved photographs documenting substandard care and unsanitary conditions floating around.

Facility policies regarding photographing patients always involve written consent. Verbal consent does not protect the facility and can be contested. Was there a witness to the verbal consent? If the medical record mentions verbal consent to the photograph, then the photograph is retrievable. 

Consent must be informed, meaning the patient should fully understand how the photo will be used, who will see it, and the potential consequences of sharing their image. 

Understanding HIPAA

HIPAA is a federal law designed to protect the privacy and security of individuals' medical information. It sets strict standards for how healthcare providers, insurers, and business associates handle patient information. The primary goal of HIPAA is to ensure that patients' personal health information (PHI) remains confidential and secure.

Definition of PHI

Under HIPAA, PHI includes any identifiable health information that can be used to identify an individual, including names, addresses, dates, phone numbers, medical record numbers, and other unique identifiers. Photos that depict a patient and their medical conditions can also be considered PHI, as they are directly linked to the individual and may reveal details about their health status.

Documentation of Negligence

The intent behind taking the photo—documenting poor and unsanitary conditions to report negligence—adds another layer of complexity. If the employee's primary goal is to advocate for the patient and ensure their safety, they may feel they are justified from an ethical standpoint. However, the method of documentation raises concerns regarding privacy and confidentiality.

Institutional Policies

Healthcare facilities have policies regarding photography, documentation, and reporting. These policies may be stricter than HIPAA guidelines and could prohibit taking photos of patients under any circumstances, regardless of consent. Therefore, even with verbal consent, if the institution has a policy against it, the employee could still face disciplinary action for not following those guidelines.

Potential for HIPAA Violations

Taking a photo of a patient, even with consent, could lead to several potential HIPAA violations:

• Inappropriate disclosure. If the photo is shared with individuals not involved in the patient's care or used in a way that exposes the patient's identity or health information, it could be seen as a violation of HIPAA regulations.
• Lack of minimum necessary standard. HIPAA's minimum necessary standard requires that only the minimum amount of information necessary to achieve a specific purpose be disclosed, for example, to document wound care. A photo could reveal more than what is necessary to document the conditions.

Repercussions for the patient: Even if consent is obtained, the patient may later regret that their photo was taken, particularly if it depicts sensitive conditions. This can lead to distress for the patient and may have implications for their ongoing care.

• Risk of misuse. There is always a risk that the photo could be misused or fall into the wrong hands, leading to potential breaches of confidentiality.

Recommendations

Employees in healthcare settings must:

• Consult policies. Seek supervisor and Risk Management guidance. Review theinstitution'ss policies regarding photography and documentation to ensure compliance.
• Obtain written consent. If a supervisor deems photography necessary, obtaining written consent from the patient provides stronger legal protection.
• Use alternative documentation methods. Consider using alternative means to document unsanitary conditions, such as written descriptions or incident reports to management, which may not involve direct patient photography.
• Report to supervisors. If conditions are unsafe or unsanitary, employees should report these issues to supervisors or appropriate authorities within the facility, using established channels and incident reports for reporting.

Conclusion

In summary, while gaining verbal consent from the patient to take a photo for reporting negligence may seem like a reasonable course of action, the act can still raise significant legal and ethical concerns under HIPAA. The potential for a violation largely depends on the context, how the photo is used, institutional policies, and the nature of the information captured.

Ultimately, employees should prioritize patient privacy and safety while adhering to both legal requirements and institutional protocols.

I hope this helps,

Nurse Beth

 

[JKL33]

The OP portrays this as if there's no policy or other way to report a concern, which is very likely not true. The thing to do in the described scenario would be to follow the facility's written policies/procedures for incident reporting or reporting a safety concern. If the situation left the patient in need of further evaluation or intervention then that should be undertaken according to standards of nursing practice and the policies/procedures of the facility. Given that those other options (incident report and providing any needed interventions) are the expectation, then unilaterally deciding to deviate from expected procedure to provide photos is unprofessional and raises other issues already detailed above. The incident reporting policy very likely does not say "please take pics on your phone to substantiate your claims" or "if you are really angry about the situation then please take pics on your phone"