Commons:Patient images

 This page is an essay; it contains the advice and/or opinions of one or more Commons contributors.
It is not a Commons policy or guideline, and editors are not obliged to follow it. Please update the page as needed, or discuss it on the talk page.

Patient images, meaning images of persons in a medical context, are a particular challenge on Commons. This essay discusses and attempts to provide guidance on patient images in terms of copyright, informed consent and medical practice.

Many people upload to Commons self-made images, and in this case the uploader is assumed to own the copyright. But this assumption may not be true, if the uploader is a health care worker who made the image in the course of their work.

In many countries it is clear who owns a patient's medical records, but not clear who owns any copyright in those records. In particular, we are still considering who holds the copyright in an X-ray or other medical imaging product. Possibilities include:

1. The radiologist, who supervised and interpreted the images? ^[1]
2. The person who actually creates the images, e.g. a radiology nurse or technician?
3. The treating physician who ordered the image to be made? ^[1]
4. The hospital or clinic, which generally employs the three above professionals? Though many are contractors and not employees in many areas of the world.
5. The government or health care system?
6. The patient,^[1] who in several countries owns the copyright to material in their medical records, and is the subject of the material?
7. No one and they are in the public domain [1][2] (some argue that this is only applicable to the U.S.)

The Berne Convention states that, "The works mentioned in this Article [including "literary, scientific and artistic domain"] shall enjoy protection in all countries of the Union. This protection shall operate for the benefit of the author and his successors in title." This implies that in Berne countries, absent an exception, medical works would be owned by the author (or by extension their employer) as with any other work. The most likely exception is a "work for hire" relationship.

In jurisdictions where a medical image is not subject to copyright (e.g. most standard diagnostic images in the United States), {{PD-medical}} can be used to indicate this.

In the UK, ownership^[2] of NHS medical records, including X-rays, are held by NHS Trusts or Health Authorities on behalf of the Secretary of State, and not with an individual employee.^[3] Copyright ownership follows the usual rule, in other words the copyright owner is not the patient but the author of the image or - more usual in practice - the author's employer such as the Health Authority.^[4]

Patient photos are copyrighted in Germany as any other photo, the initial owner of the copyright is the person who takes the photo. X-Rays and similar images obtained through scintigraphy, tomography, ultrasound or other methods are treated as "simple photographs" (Lichtbild),^[5] these are subject to a reduced copyright term of 50 years since the image was made, or if published during that time, 50 years since it was first published.^[6] See also de:Bildrechte#Röntgenaufnahmen.

Informed consent involves giving detailed written and verbal explanation to a patient what exactly they are agreeing to, for example publishing images of them online, and under which license. For case reports in medical journals, informed consent forms need to accompany any article submissions.^[7]

However, the Commons OTRS system is not suitable for sending consent forms signed by patients, since OTRS volunteers are not bound by medical secrecy.

Commons itself requires no patient consent for properly-licensed medical images in which the subject is not identifiable. See COM:PEOPLE.

The UK General Medical Council has stated that consent is not required for images from pathology slides, X-rays, laparoscopic images, images of internal organs and ultrasound images.^[8][9][10] The British Medical Association allows the use of anonymous images and data without consent.^[8]

A health care provider or other person who has access to or takes patient images and directly uploads them to Commons should take care not to breach guidelines issued by their professional body or their employment contract.

The UK's General Medical Council (which is the professional body for physicians in the UK) published guidelines on "Making and using visual and audio recordings of patients" in April 2011.^[11] For the purposes of uploading images to Commons, the section on "Recordings for use in widely accessible public media (television, radio, internet, print)" is most relevant.^[12] This is stricter than that guidelines on images for use in a patient's records, or for use in medical journals and other professional and educational publications. It states that

You must get the patient’s consent, which should usually be in writing, to make a recording that will be used in widely accessible public media, whether or not you consider the patient will be identifiable from the recording, other than for the recordings listed in paragraph 10

The exception paragraph 10 mentioned states:

Consent to make the recordings listed below will be implicit in the consent given to the investigation or treatment, and does not need to be obtained separately.

• Images of internal organs or structures
• Images of pathology slides
• Laparoscopic and endoscopic images
• Recordings of organ functions
• Ultrasound images
• X-rays

In 1998 some authors "[reject] the possibility of relying on 'implied consent,' which is raised in the GMC guidelines. While such consent may sometimes be valid with regard to recording the image, it cannot provide valid consent for the image's publication."^[13] They propose the simpler rule that:

Consent should be requested from patients for all medical photography and for the subsequent use of their images whether or not they can be identified by the picture.

The UK Human Tissue Act 2004 is concerned with the use of the actual body tissue rather than images.^[14] However, guidelines by the The Royal College of Pathologists in 2007 suggest that taking photographs could be considered a 'use' of the tissue in a legal argument and that "consequently, for post mortem tissue, compliance with consent procedures in relation to photography is strongly recommended."^[15]

The American College of Medical Genetics issued a statement in 2000 concerning "Informed consent for medical photographs".^[16] They state:

As a matter of course, we suggest that all published clinical photographs, whether likely or not to be identifying, should have appropriate consent from the patient.

Certain groups of patients are unable to give consent.

In general, it can be assumed that parent or guardian consent is necessary for all persons who do not have the ability to provide either consent or assent. In addition to those who are developmentally disabled or below the age of assent, this would also include special situations such as fetal death and stillbirth.

The "age of assent" is stated as 18 years old. Photographs of children between 7 and 18 years old require consent to be given by the child and their parents or guardians.

Most medical establishments insist that identifiable photographs of patients are taken only after a consent form has been signed. The levels of consent are generally:

1. For my medical records only.

2. Anonymously, by the hospital or associated medical school for internal teaching purposes.

3. Anonymously, to appear in medical publications (such as a paper in a journal, a textbook, or online). This may include material accessible to the general public.

The consent form may go further: specifying the publication and expressly forbidding the publication of the image other than where specified.

None of these consent levels allow for re-publication on Commons. Commons is not a medical publication and our licensing conditions prevent "for educational use" restrictions.

This consent form is a contract that applies to anyone with access to the unpublished image, and on the original publishers of the image. It applies whether the subject of the image can be clearly identified in the photograph, can only be identified by the person or those who know the person, or is unlikely to be identifiable. A medical practitioner may be further bound by terms of their employment and the issue of who owns the copyright on the images.

It is unclear if this contract is binding on other people with access to the published image. For example, a paper in an open-access journal may contain images that would appear, from a copyright perspective, to be free to use on Commons. From an ethical point of view, the subject of the photograph only consented to having their photograph taken on certain conditions, and those conditions should be respected even by those uninvolved in the original contract. However, if the subject of the image is in no way identifiable (to strangers, to the subject or to those who know the subject), it may be that the issue of consent is moot -- see COM:PEOPLE.

• BMJ
• NEJM, if the person is identifiable then a release form is needed [3] as found here NEJM
• WAENT (journal founded in 2008)

These are some commonly encountered situations that might pose copyright and confidentiality issues in which patient materials are uploaded on Commons:

• 
  Chickenpox, taken and uploaded by the subject
• 
  Radiology images
• 
  Endoscopy images
• 
  Gross pathology specimens and autopsies
• 
  Microscopy
• 
  Surgical procedures
• 
  Images of children
• 
  Electrocardiograms
• 
  Nudity
• 
  Add more here!

1. If the uploader is the creator of the image, obtain the subject's permission to publish the image on Commons. Inform the subject their permission is not revocable. This is similar to a model release.
2. If the uploader is not the copyright holder, obtain the copyright holder's permission to publish the image on Commons under a suitable license. Inform the copyright holder their license is not revocable and allows commercial use.
3. Tag the image page with {{Personality rights}}

The U.S. Public Health Image Library (http://phil.cdc.gov/phil/home.asp) and National Cancer Institute Visuals Online (https://visualsonline.cancer.gov/) contains many images related to medicine, especially pathology and microbiology. Note that some of the images are copyrighted; consult the image description page, which lists the copyright status of the image at the bottom.

Several medical journals publish images under a Creative Commons or other free license. Below is a non-exhaustive list. Please add Category:Media from BioMed Central to these uploads.

1. ↑ ^{a b c} al.], Patricia Iyer, Barbara J. Levin, Mary Ann Shea ; contributing authors, Kathleen C. Ashton ... [et (2006) Medical legal aspects of medical records, Tucson, AZ: Lawyers & Judges Pub. Co., p. 5 ISBN: 9781930056756.
2. ↑ Moyle R (30 November 1976). "Written Answers (Commons): SOCIAL SERVICES: Medical Records (Ownership and Storage)". Hansard 921 (c91W). "Personal medical records, including X-rays, in respect of patients treated under the NHS are held to be the property of the Secretary of State. NHS hospital medical records are stored in premises designated by the appropriate health authority. Access to a patient's medical records is governed in the patient's interest by the ethics of the medical and allied professions."
3. ↑ Policy and Procedure For Records: Retention & Disposal (PDF). Mersey Care NHS Trust (December 2003). Retrieved on 2008-07-05. "ownership and copyright in these records as a rule is with the NHS Trust or Health Authority, not with any individual employee or contractor."
4. ↑ Copyright, Designs and Patents Act 1988, ss 11(1) & (2)
5. ↑ Dreier, T.; Schulze, G.: Urheberrechtsgesetz. Kommentar. Munich 2004, ISBN 3406512607.
6. ↑ See §72 of the German Urheberrechtsgesetz.
7. ↑ (November 1995). "Protection of patients' rights to privacy". BMJ 311 (7015): 1272. PMID 11644736.
8. ↑ ^{a b} Tranberg HA, Rous BA, Rashbass J (February 2003). "Legal and ethical issues in the use of anonymous images in pathology teaching and research". Histopathology 42 (2): 104–9. PMID 12558741.
9. ↑ Recordings for which separate consent is not required. General Medical COuncil. Retrieved on 18 September 2013.
10. ↑ Data Protection Technical Guidance Determining what is personal data (pdf). Infomration Comissioner's Office (Aug, 21st, 2007). Retrieved on 18 September 2013.
11. ↑ Making and using visual and audio recordings of patients April 2011. General Medical Council. Accessed 26 June 2011.
12. ↑ Recordings for use in widely accessible public media (television, radio, internet, print)April 2011. General Medical Council. Accessed 26 June 2011.
13. ↑ Videos, photographs, and patient consent. Catherine A Hood, Tony Hope, Phillip Dove. BMJ 316 : 1009. 28 March 1998. Retrieved 26 June 2011.
14. ↑ UK Human Tissue Act 2004 Retrieved 26 June 2011
15. ↑ Questions and answers: The Human Tissue Act 2004 The Royal College of Pathologists. Retrieved 26 June 2011.
16. ↑ Informed consent for medical photographs Dysmorphology Subcommittee of the Clinical Practice Committee, American College of Medical Genetics. Genetics IN Medicine. November/December 2000 Vol. 2 No. 6. Retrieved 26 June 2011.

• Discussion at WP:MEDMOS
• meta:Wikilegal/Copyright of X-Ray Images
• Commons:Copyright rules by subject matter#Medical_images
• {{PD-medical}}