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Mental capacity in practice: Consent to be photographed

Young man taking photo, pointing camera towards the viewer.

In everyday healthcare practice we are directed by legislation and best practice guidance to gain informed consent for medical interventions, care plans and, broadly speaking, any professional interaction. This includes consent to be photographed, which in years gone by would have included use on medication charts (MARS sheets), care plans and care provider notice boards. In more recent years, it also includes the use of photos shared on social media, email and messaging services such as WhatsApp.

Assessing consent

Having worked across a range of health and care settings I have witnessed many examples of poor practice in this area.

One issue is that many consent forms have not been modernised to reflect the changing times and the use of photos in a range of digital media such as email communications and social media. This is a particular challenge as the people providing the ‘consent’ may not be familiar with digital media, and so may not realise exactly who will see the images.

I have also encountered cases where organisations have used generic forms that don’t fully reflect how the image(s) will be used, such as in the case of professional advertising, or even being shared in staff internal communications.

Mental capacity and consent to be photographed

According to the Mental Capacity Act, if there is a reasonable belief that a person might lack capacity for a specific decision, then a mental capacity assessment (also known as the two staged test) should be completed. Throughout which, the five principles of the Act should be upheld, which includes that of providing support to enable capacity, respecting the Equality Act through reasonable adjustments.

The assessment is broken down into two stages: the functional and diagnostic. The functional test establishes what a person must demonstrate in order to have capacity to make a specific decision. This includes understanding and retention of the relevant information, weighing up the relevant options and being able to communicate a clear decision.

In terms of capacity to consent to be photographed, I suggest the following concepts as a starting point for further question development:

  • What is a photograph?
  • Why are the photos being taken, and for what purpose?
  • Where could the photos be shared?
  • Who might see them?

Building on these initial concepts, we then might move on to explore issues relating to privacy and confidentiality. These include:

  • The right to change one’s mind.
  • Choice over where photos are used / not used.
  • Who would the individual be happy / unhappy seeing the photos?
  • What are the risks and benefits around photographs being shared and used in healthcare settings?

Putting the individual first

For many of us today, social media has become a key part of our daily lives. However, this isn’t the case for everyone. Indeed, there is a risk that the process of taking and sharing photos is so normalised for many of us that we don’t consider whether the person being photographed understands what sharing on social media actually means, and whether they can therefore provide fully informed consent.

As professionals, we have a responsibility to ensure we know who does or does not give consent to photography, including where they agree for their photos to be shared. We must also be sure to review this consent when we actually come to take the photos in order to check they are happy to participate.

If someone is unable to consent, we must be sure to consult appropriate parties and check that Best Interest decisions have been established. These should be reviewed, reassessed and updated on a regular basis to ensure that they remain accurate. 

Rights and responsibilities

The process of establishing consent is a basic right, and links to other policies and protections such as GDPR and data protection legislation. Without due diligence in these matters, we are potentially putting vulnerable people at risk.

If you would like to find out more around consent and mental capacity, please do visit our services page or get in touch.

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