An increasingly common habit in hospitals and clinics is filming by a relative or a third party of the procedure performed by the patient, who wants to record that fact, especially in those acts related to pregnancy.
It is asked whether or not it is allowed to film the exam; if the executing physician can refuse to participate in it or even prevent it from being carried out.
It is evident that filming the act is not included in the scope of the service contracted by the patient, but that the exam is free of errors, using the best existing technique.
Certainly, there is no norm or rule that allows or prohibits this type of practice, leaving it to common law, civil rules, to clarify such an issue.
On the one hand, there is the patient who, when asking for the act to be filmed, authorized the capture of images about this intimate and private act. Being free of his will, he can allow the recording of his image, with no impediment to the filming being carried out by a third party that he has authorized.
On the other hand, the doctor's rights must be protected. He is also – like the other members of the team – a being endowed with personality, being able to oppose the recording of his image and voice.
Moreover, the physician is the authority present in the operating room or examination room, being able to reject conduct that may negatively influence the medical act, to the detriment of the procedure and/or the patient himself. There is, for example, a risk of contamination of the environment, increasing the risk of infection, or there may even be a loss in concentration for performing a certain exam that is operator-dependent.
Thus, the doctor is not obliged to accept the filming of the medical act, although there is no prohibition for such an act to be performed. It is up to the parties involved to adjust the conditions for this type of conduct, allowing or not its practice.
In an opinion issued in PROCESS-CONSULTATION CFM No. 0309/99PC/CFM/No. 41/1999, this was the conclusion reached by the Federal Council of Medicine:
“We do not see any formal ethical impediment to filming in the delivery room, provided that at the request of the patient/or family member and the authorization of the professionals involved in the act, subject to the institution's regulatory provisions”.
Thus, it is recommended that the patient be advised in advance, when possible, of permission or not to film the act, so that he can choose to carry out his procedure in the place that suits him best.
It is also recommended that a policy be instituted by the institution on this subject, with rules aimed at protecting its staff and patients, which will bring transparency and clarity in the adoption of conducts that allow or not the filming of the procedure, when authorized by the patient.
CBR Legal Advice