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Dilemma
Accident and Emergency Nursing (2001) 9, 163–165 © 2001 Harcourt Publishers Ltd doi: 10.1054/ aaen.2001.0246, available online at http://www.idealibrary.com on
Dilemma TV programme in A&E I am an RN working in A&E. A TV company has been given permission to film a series of programmes in the department, focusing on staff’s working lives. This is despite half the nursing staff being uncomfortable with the idea. My objections are threefold: safeguarding patients’ privacy; the impact on the service during filming; and the possible effect on local people accessing the service in fear of losing their anonymity. I am unable to reconcile these issues and act in the best interests of my patients. What should I do? © 2001 Harcourt Publishers Ltd
Nursing response Before answering the question asked by the nurse at the end of the dilemma, a number of other questions should be asked. Firstly, who has given permission to film a series of programmes about the staffs’ working lives, and who exactly are the television company interested in: the nurses, doctors, ancillary staff? Also, have the staff, who are to be filmed, been consulted? If they have, why are so many of the nursing staff unhappy with the decision? If they have not, why not, when it is the staff who are to be the focus of attention for the television crew? In most hospital trusts, the press officer will play a key role in determining whether a television company will gain access to a clinical area. Does the hospital in question have written guidance as to how access may be achieved or denied? When considering these questions it is important to remember that the television company personnel will probably have a different outlook from the nursing staff, on matters concerning privacy. That is they will not necessarily view privacy as something to be protected. In some cases what are very private matters to a person become the basis of a good story for television. Therefore, protecting patients’ privacy and ensuring anonymity is a realistic concern, because, although the film company is primarily interested in the staff, it is inevitable that patients will become part of the television programme as well. Ultimately the presence of a television crew in the department
© 2001 Harcourt Publishers Ltd
will have some impact on the service in terms of patient privacy, comfort and safety. Addressing the question ‘what should I do?’ becomes more difficult once the film crew have gained access to the department, unless the Trust have guidance available on how to deal with issues as they arise. If guidance is available, the nurse should have a way of making her concerns known, as well as expecting certain actions to be taken. On reflection it would be easier to deal with the situation before the nurse got to the stage of having doubts as to how she should work in the presence of a television crew. The message of this dilemma is that of how and why decisions are made about your work area and by whom. If you are faced with having a television crew in your department, take care to do everything you can to become actively involved in how and when decisions about their access and work boundaries are made. Then, if you and your colleagues do have doubts about granting access, you will be in a better position to consider all the options and associated outcomes before a final decision is made.
Acknowledgement
My thanks to everyone who has helped me develop the response to this dilemma. Dr Lynn Sbaih, Lecturer, College of Nursing, Midwifery and Health Visiting, University of Manchester, UK
Accident and Emergency Nursing ( 2 0 0 1 )
9, 163–165
163
Dilemma
Legal response When the television public is not watching hospital dramas such as Holby City, Casualty and others, they appear to be viewing documentaries of hospitals in action or specific treatments and operations: Southampton, Liverpool and Sheffield Children’s Hospitals and Great Ormonde Street have all been the subject of television visits. The questions in this dilemma raise the following legal issues: ●
●
●
●
How does the law protect the privacy and the confidentiality of the patient? What if staff do not wish to be filmed, do they have the right to object? How is carrying on a service effectively compatible with the filming? Would potential patients be intimidated from accessing the service because they fear a loss of autonomy?
Privacy of patients The Human Rights Act 1998 which required observation by public authorities of the European Convention on Human Rights came into force in England and Wales on 2 October 2000. (It came into force for Scotland on devolution) Article 8 of the Convention states that: Everyone has the right to respect for his private and family life, his home and his correspondence.
There are several qualifications to this right including ‘what is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country’ and others, none of which would appear to apply here. It could therefore be argued that if a patient was filmed without his consent, attending and being treated in an A&E department, then he could seek judicial review of the NHS trust’s failure to uphold Article 8. His consent to the filming would of course be a defence to the Trust. Such is the concern on the impact of Article 8 that an education authority ordered no school Christmas productions to be filmed because of a potential breach of Article 8.
Confidentiality of patient information All staff, and the NHS trust itself, have a duty to respect the confidentiality of patient information.
164
Accident and Emergency Nursing ( 2 0 0 1 )
9, 163–165
This derives from the Data Protection Act 1998 and also professional Codes of Practice. There are several exceptions to this duty of confidentiality, including disclosure in the public interest. This would not appear to apply to the filming of a patient in hospital. However the patient can give consent to any disclosure, which would, without that consent, be a breach of confidentiality. The Caldicott Guardian, a non-executive director identified in each Trust as having responsibility for ensuring that the principles of confidentiality are obeyed in each trust, should be involved in discussions to ensure that patient confidentiality is protected.
Rights of staff to refuse to be filmed Staff have a duty to obey the reasonable instructions of the employer. This is an implied term in their contract of employment. However the question arises as to whether taking part in a film is a reasonable instruction by the employer? Clearly it depends upon the circumstances. There can be significant reasons why an employer would wish to present to the local or even national community a good image of the service which it provides, especially where new developments in technology are being presented to the public. In such circumstances it might be considered a reasonable request for staff to participate in the filming. However, in other circumstances, especially where there is interference with work, filming could be an unwelcome distraction and an additional burden on already oppressed staff. Video cameras used by employers are considered to be legitimate if staff are warned if they are to be installed. Certainly staff could rely on Article 8 the right to privacy, discussed above, if there is any question of probing into their private lives.
What if staff object; how do they communicate their views? Staff can rely upon the procedure set up by the NHS trust under the Public Interest Disclosure Act 1998. All NHS trusts were required by the Department of Health to ensure that staff were aware of the procedure to be followed if they had any concerns such as those relating to health and safety or criminal activities (HSC 1998/198). Ideally of course, a concerned management would have discussed with senior staff within
© 2001 Harcourt Publishers Ltd
Dilemma
the A&E department before agreeing to any filming by a TV company.
Conclusions
Effective service The Trust has a responsibility to ensure that a reasonable standard of care is provided for every patient. It must therefore ensure that no film company interferes with the effective provision of patient services. If a patient were to be harmed as a result of the presence of the TV company, then that patient could sue the NHS trust for breach of its duty of care to provide a reasonable standard of care which has resulted in harm to the patient. The Bolam Test would apply in defining whether there was a reasonable standard of care (Bolam V. Friern Barnet 1957). Filming must be compatible with reasonable standard of care. The fact that filming was taking place would not provide a defence if harm occurred because of the filming. Under the Occupier’s Liability 1957 both the NHS Trust and also the independent contractors, i.e. the film company, could be liable if their actions caused harm to a visitor to the premises.
Intimidation of potential patients In practice, churches have found that an announcement that Songs of Praise is to be filmed results in overflowing pews, so it may well be that far from deterring patients, the prospect of the presence of a TV company might attract people. On the other hand there may be patients, especially those with HIV or visiting GUM who would not want to be filmed. Patients should be given an assurance about filming and their right to privacy and to consent to the filming. Prior to filming taking place, there are advantages in discussing the project with Community Health Councils or other patient groups.
© 2001 Harcourt Publishers Ltd
There are now well-established procedures for filming. TV companies are experienced in ensuring that there is no interruption or interference with the safe effective functioning of the service. The contracts and agreements should ensure that there is provision for such issues. Also, any agreement between the trust and the TV company would cover the need to obtain the patient’s consent to any filming or disclosure of their condition. Often staff take the opportunity to complain before the cameras about the difficult work situation, lack of staff or other problems. This is not good practice. It is essential that such concerns are raised previously with senior management and use made of the whistle-blowing procedure. It is not unknown for senior management to take on a more junior role and be filmed during their work. For example, Ann Lloyd, then Chief Executive of Frenchay NHS Trust worked as a nursing auxiliary and was filmed throughout. It is important to protect the interests of those who are mentally incapable of giving consent to filming. There could be advantages if consideration were given by a local ethics committee of the agreement to be signed with the film company to ensure that the interests of those incapable of consenting are taken into consideration before any agreement is signed. References HSC 1998/198 Bolam v. Friern Barnet HMC 1957 2 All ER 118
B Dimond Barrister at Law, Emeritus Professor, University of Glamorgan, UK
Accident and Emergency Nursing ( 2 0 0 1 )
9, 163–165
165
Dilemma TV programme in A&E I am an RN working in A&E. A TV company has been given permission to film a series of programmes in the department, focusing on staff’s working lives. This is despite half the nursing staff being uncomfortable with the idea. My objections are threefold: safeguarding patients’ privacy; the impact on the service during filming; and the possible effect on local people accessing the service in fear of losing their anonymity. I am unable to reconcile these issues and act in the best interests of my patients. What should I do? © 2001 Harcourt Publishers Ltd
Nursing response Before answering the question asked by the nurse at the end of the dilemma, a number of other questions should be asked. Firstly, who has given permission to film a series of programmes about the staffs’ working lives, and who exactly are the television company interested in: the nurses, doctors, ancillary staff? Also, have the staff, who are to be filmed, been consulted? If they have, why are so many of the nursing staff unhappy with the decision? If they have not, why not, when it is the staff who are to be the focus of attention for the television crew? In most hospital trusts, the press officer will play a key role in determining whether a television company will gain access to a clinical area. Does the hospital in question have written guidance as to how access may be achieved or denied? When considering these questions it is important to remember that the television company personnel will probably have a different outlook from the nursing staff, on matters concerning privacy. That is they will not necessarily view privacy as something to be protected. In some cases what are very private matters to a person become the basis of a good story for television. Therefore, protecting patients’ privacy and ensuring anonymity is a realistic concern, because, although the film company is primarily interested in the staff, it is inevitable that patients will become part of the television programme as well. Ultimately the presence of a television crew in the department
© 2001 Harcourt Publishers Ltd
will have some impact on the service in terms of patient privacy, comfort and safety. Addressing the question ‘what should I do?’ becomes more difficult once the film crew have gained access to the department, unless the Trust have guidance available on how to deal with issues as they arise. If guidance is available, the nurse should have a way of making her concerns known, as well as expecting certain actions to be taken. On reflection it would be easier to deal with the situation before the nurse got to the stage of having doubts as to how she should work in the presence of a television crew. The message of this dilemma is that of how and why decisions are made about your work area and by whom. If you are faced with having a television crew in your department, take care to do everything you can to become actively involved in how and when decisions about their access and work boundaries are made. Then, if you and your colleagues do have doubts about granting access, you will be in a better position to consider all the options and associated outcomes before a final decision is made.
Acknowledgement
My thanks to everyone who has helped me develop the response to this dilemma. Dr Lynn Sbaih, Lecturer, College of Nursing, Midwifery and Health Visiting, University of Manchester, UK
Accident and Emergency Nursing ( 2 0 0 1 )
9, 163–165
163
Dilemma
Legal response When the television public is not watching hospital dramas such as Holby City, Casualty and others, they appear to be viewing documentaries of hospitals in action or specific treatments and operations: Southampton, Liverpool and Sheffield Children’s Hospitals and Great Ormonde Street have all been the subject of television visits. The questions in this dilemma raise the following legal issues: ●
●
●
●
How does the law protect the privacy and the confidentiality of the patient? What if staff do not wish to be filmed, do they have the right to object? How is carrying on a service effectively compatible with the filming? Would potential patients be intimidated from accessing the service because they fear a loss of autonomy?
Privacy of patients The Human Rights Act 1998 which required observation by public authorities of the European Convention on Human Rights came into force in England and Wales on 2 October 2000. (It came into force for Scotland on devolution) Article 8 of the Convention states that: Everyone has the right to respect for his private and family life, his home and his correspondence.
There are several qualifications to this right including ‘what is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country’ and others, none of which would appear to apply here. It could therefore be argued that if a patient was filmed without his consent, attending and being treated in an A&E department, then he could seek judicial review of the NHS trust’s failure to uphold Article 8. His consent to the filming would of course be a defence to the Trust. Such is the concern on the impact of Article 8 that an education authority ordered no school Christmas productions to be filmed because of a potential breach of Article 8.
Confidentiality of patient information All staff, and the NHS trust itself, have a duty to respect the confidentiality of patient information.
164
Accident and Emergency Nursing ( 2 0 0 1 )
9, 163–165
This derives from the Data Protection Act 1998 and also professional Codes of Practice. There are several exceptions to this duty of confidentiality, including disclosure in the public interest. This would not appear to apply to the filming of a patient in hospital. However the patient can give consent to any disclosure, which would, without that consent, be a breach of confidentiality. The Caldicott Guardian, a non-executive director identified in each Trust as having responsibility for ensuring that the principles of confidentiality are obeyed in each trust, should be involved in discussions to ensure that patient confidentiality is protected.
Rights of staff to refuse to be filmed Staff have a duty to obey the reasonable instructions of the employer. This is an implied term in their contract of employment. However the question arises as to whether taking part in a film is a reasonable instruction by the employer? Clearly it depends upon the circumstances. There can be significant reasons why an employer would wish to present to the local or even national community a good image of the service which it provides, especially where new developments in technology are being presented to the public. In such circumstances it might be considered a reasonable request for staff to participate in the filming. However, in other circumstances, especially where there is interference with work, filming could be an unwelcome distraction and an additional burden on already oppressed staff. Video cameras used by employers are considered to be legitimate if staff are warned if they are to be installed. Certainly staff could rely on Article 8 the right to privacy, discussed above, if there is any question of probing into their private lives.
What if staff object; how do they communicate their views? Staff can rely upon the procedure set up by the NHS trust under the Public Interest Disclosure Act 1998. All NHS trusts were required by the Department of Health to ensure that staff were aware of the procedure to be followed if they had any concerns such as those relating to health and safety or criminal activities (HSC 1998/198). Ideally of course, a concerned management would have discussed with senior staff within
© 2001 Harcourt Publishers Ltd
Dilemma
the A&E department before agreeing to any filming by a TV company.
Conclusions
Effective service The Trust has a responsibility to ensure that a reasonable standard of care is provided for every patient. It must therefore ensure that no film company interferes with the effective provision of patient services. If a patient were to be harmed as a result of the presence of the TV company, then that patient could sue the NHS trust for breach of its duty of care to provide a reasonable standard of care which has resulted in harm to the patient. The Bolam Test would apply in defining whether there was a reasonable standard of care (Bolam V. Friern Barnet 1957). Filming must be compatible with reasonable standard of care. The fact that filming was taking place would not provide a defence if harm occurred because of the filming. Under the Occupier’s Liability 1957 both the NHS Trust and also the independent contractors, i.e. the film company, could be liable if their actions caused harm to a visitor to the premises.
Intimidation of potential patients In practice, churches have found that an announcement that Songs of Praise is to be filmed results in overflowing pews, so it may well be that far from deterring patients, the prospect of the presence of a TV company might attract people. On the other hand there may be patients, especially those with HIV or visiting GUM who would not want to be filmed. Patients should be given an assurance about filming and their right to privacy and to consent to the filming. Prior to filming taking place, there are advantages in discussing the project with Community Health Councils or other patient groups.
© 2001 Harcourt Publishers Ltd
There are now well-established procedures for filming. TV companies are experienced in ensuring that there is no interruption or interference with the safe effective functioning of the service. The contracts and agreements should ensure that there is provision for such issues. Also, any agreement between the trust and the TV company would cover the need to obtain the patient’s consent to any filming or disclosure of their condition. Often staff take the opportunity to complain before the cameras about the difficult work situation, lack of staff or other problems. This is not good practice. It is essential that such concerns are raised previously with senior management and use made of the whistle-blowing procedure. It is not unknown for senior management to take on a more junior role and be filmed during their work. For example, Ann Lloyd, then Chief Executive of Frenchay NHS Trust worked as a nursing auxiliary and was filmed throughout. It is important to protect the interests of those who are mentally incapable of giving consent to filming. There could be advantages if consideration were given by a local ethics committee of the agreement to be signed with the film company to ensure that the interests of those incapable of consenting are taken into consideration before any agreement is signed. References HSC 1998/198 Bolam v. Friern Barnet HMC 1957 2 All ER 118
B Dimond Barrister at Law, Emeritus Professor, University of Glamorgan, UK
Accident and Emergency Nursing ( 2 0 0 1 )
9, 163–165
165