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Is it a violation of the Health Insurance Portability and Accountability Act to take a picture of a patient’s injury on a cellphone?

Friday June 7, 2013
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Question:

Dear Nancy,

Is it a violation of the Health Insurance Portability and Accountability Act to take a picture of a patient’s injury on a cellphone? There is nothing identifying the patient, and it was not posted anywhere. I work at a unionized hospital and need to present the employer with all the knowledge I can get.

Concerned



Nancy Brent replies:

Dear Concerned,

The taking of a photograph by a nurse on a cellphone is of major concern in this era of social media. It is quite probable your employer has adopted a policy about the use of cellphones in the facility, and it is assumed the union's bargaining agreement with the facility has adopted that policy for its members. Regardless of what the union agreement says about how you may be disciplined for a violation of the policy, a violation is a violation, so arguing your union member status probably will not help you.

You might learn from this situation by reviewing some important guidelines for you as a nurse and the use of social media in that role. The National Council of State Boards of Nursing's White Paper: “A Nurse's Guide to the Use of Social Media” (2011), available at www.ncsbn.org; The American Nurses Association's “Code of Ethics For Nurses” (2001) — Provision 3 states that the nurse must "safeguard the patient's right to privacy, as the need for healthcare should not justify unwanted intrusion into the patient's life; "The American Nurses Association's “Principles of Social Media Networking: Guidelines For Registered Nurses” (2011), and the “Foundations of the eHealth Code of Ethics” by Bette-Jane Crigger of the Hastings Center (2001) (www.ihealthcoalition.org/foundations-of-the-ehealth-code-of-ethics) would all be required reading.

The protections afforded a patient by the laws of privacy, confidentiality and HIPAA, and the ethical mandates a nurse must adhere to when practicing nursing cannot be understated. It is not known why you took the picture, but it is hoped that whatever the outcome of your situation, you will have learned those laws and ethical mandates cannot be ignored.

Sincerely,
Nancy




Nancy J. Brent, RN, MS, JD, is an attorney in private practice in Wilmette, Ill. This information is for educational purposes only and is not intended as legal or any other advice. The reader is encouraged to seek the advice of an attorney or other professional when an opinion is needed.