Privacy Aspects of Video Recording in the Operating Room

Abstract

A variety of applications of video recording in health care is growing including the development of a Digital Operation Room Assistant (DORA). This is a monitoring system, based on the analysis of video templates, that, similar to the black box in aviation, automatically records events in the operating room (OR). After the completion of the surgical procedure the video images may also be useful for other purposes such as the evaluation of the surgical technique or as an aid in training and education of medical staff and students. Yet, under Dutch privacy law, video images, once they are stored, are considered as personal data and legal demands have to be met to keep, use or delete these images.

While the value of video recording in the OR, − the enhancing of the quality of the surgical procedure and the patient’s safety – is widely acknowledged, concerns have risen. Medical professionals claim to be unfamiliar with the legal demands that have to be met and fear to unlawfully violate the patient’s privacy. Another concern is that the video images of the surgical procedure will be used in court proceedings and as such might lead to the physician’s liability or a disciplinary measure, such as an official warning.

In the Netherlands research was done on the legal implications of a Digital Operation Room Assistant. The aim of the study is to provide a legal framework comprising the prerequisites for the storage, application and deletion of video images of the surgical procedure. In addition the legal position of the medical professional should be clarified.

Legal demands related to the processing of personal data, such as the limitation, the quality, the specification of the purpose, the limited use and the openness of the video images, have to be taken into account. In addition measures should be taken to guarantee the safety of and the accountability for the video images. Video images of surgical procedures are considered as personal data concerning a person’s health and should be treated with even more care. The patient’s consent for video recording is obviously the most legitimate basis for video recording in this context. To make legal implications more explicit three situations are discerned in which video registration in the OR will take place. The application of the video images in the discerned situations has consequences for the patient’s consent for the video recording. As a rule the video images shall be deleted as soon as they have achieved the purpose they have been set up for. This is not the case when the video images shall be added to the medical file. It is advisable to set up a protocol about the correct procedure in this matter.

The data subject is not only the patient but also the medical professional who is filmed. The video recording should take place with his consent. By all means it must be clear that the video data shall not be used for other purposes (such as the assessment of the medical professional) than the original purpose for video registration.