Keith Foster, PhD
Advances in technology have made direct observation by video recording or live-feed easy and affordable, allowing the most financially limited programs to conduct direct observation this way. It is not surprising, then, that a large number of family medicine residency programs use some form of video recording or live-feed direct observation.
What is surprising is the absence of or only passing reference to the issues of informed consent, patient authorization, and procedural guidelines related to video recording and live-feed precepting in the examining room, particularly in the age of HIPAA.
The culture of a teaching environment is oriented to the benefit of the teaching method in achieving the desired outcome. But I fear, in this teaching culture of direct observation, the benefits of a preferred teaching method have seduced the profession and its professional organizations into a rationalized justification for avoiding an open and full review of the patient’s informed consent and right to privacy in this process by those designated and trained to do so—the legal department/compliance officer.
When I joined my newly accredited residency program and attended several professional conferences, I quickly learned of the ACGME requirement for direct observation and the benefit of a method that presented the doctor-patient encounter in its most natural form. I proposed the implementation of video recording or live-feed precepting to my program director, who had recently attended an ABFM Program Director’s Conference and gotten the same message from them about the importance and benefit of video observation. We agreed to prepare a proposal to present to our legal department/compliance officer.
To prepare, I used the STFM Resource Library listserv to contact the members of an STFM Group, who not only responded but forwarded copies of their authorizations and procedures. I summarized those responses and forwarded them to our legal folks. The lawyers proceeded to contact compliance officers at two programs in our region. They reported the legal staff at those institutions had no idea such a process was happening and were concerned to hear of it.
Assuming this was an unfortunate coincidence, I returned to the listserv and asked the Group to forward their legal department contacts. The responses were nearly unanimous in indicating video precepting authorizations and/or procedures for maintenance of private health information contained on recordings were either not reviewed, or had not been reviewed in many years, by their compliance officer and they preferred to stay “under the radar.” Many responses were in the order of “We have been doing it for years,” “Don’t let the legal people get you down,” or even “The previous director did something about it, but we aren’t sure what.”
These examples are not unique and are reflective of many well-intentioned programs. One such program, presenting at the 36th Forum for Behavioral Science in Family Medicine, that utilizes live-feed observation indicated they only obtain verbal permission, with the justification that live-feed observation is essentially the same as in-room precepting. In discussing their system it was acknowledged that the feed can be recorded with the flip of a switch. Should this potential for recording be shared with the patient? Secure maintenance of private health information is also an issue. In a related conversation with a colleague at the Forum about their video recording use, they acknowledged a recording is passed among the residents and faculty for review without clear procedural rules or monitoring of the process.
While programs have the good goal of ensuring the highest level of training, they are running fast and loose with the legal and ethical application of patient privacy law. Simple authorization does not meet the full meaning of informed consent, and good intentions cannot be substituted for the establishment and rigorous maintenance of procedures to ensure the protection of a patient’s private health information under HIPAA.
Can we, as a profession, leave our heads in this legal/ethical sand, pursuing good training while potentially violating the legal rights of our patients? Like it or not, HIPAA is the law: the standard by which we are measured regarding informed consent; and, for better or worse, it is the legal department/compliance officer who determines the application of that standard.
Individual programs should not bear the burden of determining the implementation of these issues. I believe we must move at the national level to close the divide between what is ethical and what is legal regarding video precepting methods and procedures. Family medicine as a profession, and its related professional organizations, must open a dialogue on establishing guidelines for video precepting that meet the legal requirements of informed consent and confidentiality of private health information.
I challenge the Boards of ABFM, ACGME, and STFM to initiate and lead this dialogue to establish clear guidelines for the legal and ethical use of this essential teaching tool in family medicine residency training.
STFM Blog 
As the lead presenter at the Forum session Dr. Foster referred to, I would like to clarify that our program NEVER records patients without obtaining written informed consent. We have completed hundreds of live observations without recording and we have never just flipped a switch to start videorecording. While I don’t specifically recall our presenters simply saying we “just flip a switch,” recording an encounter in our setting is far more technically complex and subject to a rigorous informed consent policy. That’s one of the reasons we now utilize video observation without recording. When we videorecorded patients in our setting they not only sign a well structured consent form reviewed by attorneys and medical ethicists at our institution, they must also read it and acknowledge at the end of their visit that they still agree to having been recorded. We also have a brochure outlining patients’ rights regarding videorecording.
While Dr. Foster’s intent to insure that patients’ rights are well protected is a cause that I also strongly support, calling for organizations such as STFM to take a position on this topic may be redundant. Multiple certifying organizations provide highly detailed guidelines for videorecording in medical education settings and they have the authority to sanction providers and programs for improper videorecording. These guidelines are overwhelmingly patient-centered and based on patients’ rights to privacy, confidentiality and autonomy, not legal opinions. The AMA has published and updated ethical guidelines for videotaping in medical education settings, AHIMA has a specific practice brief on patient videorecording and the British Medical Council, the organization that regulates physician behavior in the UK has extensive guidelines for videorecording in educational settings that apply to the US. Finally, JCAHO has published rules for videorecording in medical settings. The majority of family medicine residency programs are located in hospital based clinics and thus subject to JCAHO rules. Most importantly, JCAHO has in the past prohibited residency programs from continuing to videorecord when they have discovered violations of patients rights.
Whether or not programs access these guidelines is another issue which I believe is the point of Dr. Foster’s blog. If a faculty member, resident or patient believes that videorecording has been improper, unethical or illegal, we need a reasonable mechanism for such individuals to express their concerns or file a complaint. The rules and guidance are out there. We need to empower those who are subjected to improper recording to have the the opportunity for redress.
I thank Dr. Butler for his response. His work in the field in general and in the area of informed consent is second to none. We are in agreement about the availability of resources for affirming the preservation of the rights of our patients. However, we disagree that an established grievance process is an adequate solution. The problem, as I see it, is the choice many well-intentioned programs make to self-define informed consent and procedural rules for the preservation of Private Health Information without benefit (and the potential hassles) of Compliance/Legal review by an independent party. Without established direct and recorded patient-observation compliance guidelines, our professional organizations enable this dubious process of self-determination. In the same manner that presenters are required to reveal any potential conflicts at our conventions, shouldn’t that include confirmation that any presentation utilizing direct or recorded patient observation had the consents and procedures for those patients reviewed by that presenter’s compliance/legal department?
I think this falls under the general heading of “shifting sands” – we are, in some respects, being overtaken by technology. Another area in dire need of clear guidelines, with national guidance needed at least at the level of principles, is privacy of EMR records, especially behavioral health. The problem in Family Medicine is that Behavioral Health constantly spills over into general medical care. How do we record sensitive details (like ACEs) in a way where there is a firewall so that only the recording provider and individually consented additional health care providers have access to them?
I’ve been precepting for a quarter century and can attest to the extraordinary value of video precepting especially for students and early year residents. The legal and ethical concerns expressed above are both largely theoretical and vastly overblown. Obviously we need to protect the privacy of any and all patient documentation, whether verbal, written or video, and we need to have established systems that carefully do so.
However, this sense that video recording requires some higher standard of written informed consent, before and after the encounter is simply not supported by any substantial evidence of abuse. Do we require special written informed consent when we round on a hospital patient and then discuss his care with a dozen or more students, residents, fellows, pharmacists, social workers, etc. Is there special, specific, written informed consent when we document in an EMR his sexual proclivities, substance use, family relationships or mental status? Of course not. We observe HIPAA rules fastidiously, and they allow for training and important information sharing.
Yes, have a system for careful storage and monitoring of any and all video recordings. Yes, document that the patient is aware of and consents to video recording and perhaps has received information (a handout about how those recordings are handled is sometimes used). No, no specific written informed consent is necessary or warranted. Video precepting is so immensely valuable that artificial and unnecessary barriers to its utilization harm our ability to teach, evaluate and provide care.
Rob Crane, MD
Family Medicine
Ohio State University.
Dr. Crane succinctly and eloquently expresses the views of many of the colleagues I have spoken with on this topic. Video precepting is a valuable tool and most, if not all, programs operate with every intention of protecting the rights of the patient; however, awareness of and good intention for meeting the rights of the patient do not meet the current standard for achieving that goal under privacy law. The concerns I raise are neither theoretical nor overblown. I am aware of recent program experiences with breach of privacy issues that have resulted in at least one lawsuit, denial of continued use of video precepting in another, and multiple denials to programs wishing to institute the practice. The determination of adequate informed consent and appropriate records management is designated under HIPAA to the Privacy Officer. Programs that have approval for their video precepting from their privacy officer meet the standard. My communications with and recent survey of US Family Medicine Residency Programs indicates a significant number of programs either do not have Privacy Officer approval for video recording or are unaware if they do.
I am delighted that Dr. Crane’s program observes HIPAA rules fastidiously. He is correct that they do allow for important information sharing. But video recording has become an increasingly sensitive privacy issue, largely from issues outside of academic medicine, and Privacy Officers, as well as the public, are increasingly concerned about its use and potential for privacy violation. Preservation of the opportunity to continue the use of this important training tool requires an appreciation of the changing legal environment regarding its use.