Rolling up Jack's sleeve to examine the ulcer, Marisol notes that there is purulent discharge. She recommends that Jack have the nurse practitioner at the local client examine the wounds. Jack declines.
Marisol is concerned about follow up care as she will be away for the next few weeks. Without consulting with Jack, Marisol takes a picture of the wound with her personal phone, includes a description of the care she provided then emails it to the clinic's nurse practitioner.
While Marisol had good intentions, taking a picture without consent breaches Jack's privacy and confidentiality. Marisol doesn't explain to Jack why the photo is needed, and doesn't get Jack's consent to take it or share it with colleagues. Marisol needed to get Jack's consent prior to taking and sharing the photo explaining why a photo of the wound was needed and who it would be shared with. Marisol breached Jack's privacy and the Professional Standards for LPNs by taking a photo and sharing it without consent. Marisol may have also violated the
Freedom of Information and Protection of Privacy Act by allowing personal information of a client to be stored outside of Canada.
Consent is valid only if clients understand fully how their personal health information is to be used or disclosed. This information must be presented to the client before consent is obtained.
Health Care (Consent) and Care Facility (Admission) Act sets out some criteria for valid informed consent to health care. An adult is considered to have consented when:
Express consent is written or spoken permission directly communicated to the health care provider about proposed actions. Express consent demonstrates to the health care provider that the client understands what is being proposed. Signing papers, oral or verbal communication such as saying, "Yes, I consent" is an example of express consent.
Implied consent assumes permission is given based on a client's actions and the circumstances of a particular situation, rather than on their direct written or spoken agreement (e.g., client rolls up sleeve when nurse reaches for blood pressure cuff, or is silent to a proposed action).
Nurses recognize that consent may be given verbally, in writing, through an alternative communication system (e.g., computer assisted) or through behaviour that implies consent. Implied consent is not shown by a client's non-action (e.g., not moving their arm away) but from active participation (e.g., offers their arm to support the nurse completing a diagnostic test). In order to reduce the risk of misinterpretation of implied consent, nurses should seek verbal affirmation prior to nursing care.
Marisol also likely breached her employer's policy by using a personal device to store and share client information. As mobile devices themselves store and retain data (often outside of Canada), there is the potential for unauthorized disclosure of clients' personal health information. Without correct encryption, any emails, voicemails, texts, pictures or audio on portable devices (including memory sticks) could be inappropriately accessed or disclosed if the device is lost, stolen or inadvertently viewed. Follow your employer's policies for mobile devices and client health information or speak to your organization's privacy officer.
Email messages, texts, photos, and audio recordings taken on or with a mobile device—within the context of approved employer policy—should be stored electronically or printed in hard copy and transferred to the client's health record.
If your agency does not have a policy regarding the use of mobile devices, discuss the situation with your colleagues and manager to advocate for resources and policies related to the use of technology that could improve client care.
While Marisol's intention was to support continuity of care for Jack, standards related to privacy and confidentiality, consent and her nursing designation's Professional Standards and/or Code of Ethics, as well as agency policies and legal processes, need to be followed. These include: