6. Jenkins MA, Baglietto L, Dowty JG et al. Cancer risks for mismatchrepair gene mutation carriers: a population-based early onset case-familystudy. Clin. Gastroenterol. Hepatol. 2006; 4: 489–98.

7. Jenkins MA, Baglietto L, Dite GS et al. After hMSH2 and hMLH1–whatnext? Analysis of three-generational, population-based, early-onsetcolorectal cancer families. Int. J. Cancer 2002; 102: 166–71.

8. Parry S, Win AK, Parry B et al. Metachronous colorectal cancer risk formismatch repair gene mutation carriers: the advantage of more extensivecolon surgery. Gut 2011; 60: 950–7.

9. Nugent KP, Spigelman AD, Phillips RK. Life expectancy aftercolectomy and ileorectal anastomosis for familial adenomatouspolyposis. Dis. Colon Rectum 1993; 36: 1059–62.

10. Lipton L, Halford SE, Johnson V et al. Carcinogenesis in MYH-associated polyposis follows a distinct genetic pathway. Cancer Res.2003; 63: 7595–9.

11. Rex DK, Ahnen DJ, Baron JA et al. Serrated lesions of the colorectum:review and recommendations from an expert panel. Am. J.Gastroenterol. 2012; 107: 1315–29.

Frank A. Frizelle,* MMedSci, FRACSChristopher J. Wakeman,*† MMedSci, FRACS

*Christchurch Colorectal Unit, Department of Surgery,Christchurch Hospital, Christchurch, New Zealand, and †New

Zealand Familial Gastrointestinal Cancer Service, Christchurch,New Zealand

doi: 10.1111/ans.12245

Clinical photography: surgeons need to get smart

Over the past decade, a digital camera has become ‘standard equip-ment’ in many surgeons’ offices, and photography is now a widelyused and effective tool in modern clinical practice. Images that wereonce taken only by medical illustrators may now be taken bymembers of surgical teams (who often use personal smartphoneswith digital cameras which are connected to the internet) duringward rounds, consultations and intraoperatively. Clinical photo-graphs help to objectively evaluate and document surgical cases. Theability to record progress and outcomes supports audit and informsclinical practice, and supports continuous improvement in care forpatients. Clinical photography is essential to surgeons’ role asmentors and educators, in clinical environments and in lectures andcase presentations. Good patient care and surgical outcomes flowfrom multidisciplinary teamwork, the success of which relies oneffective communications between individual team members.

With increasing availability and use of digital photography, risksassociated with its misuse have also significantly increased. Interac-tions involving capture of photographs may be rushed and occurwhen patients are vulnerable and not fully informed of potential usesof the images being captured. In addition, there is often no provisionfor secure storage and documentation of photographs. However, bytaking such images, surgeons place themselves in a position ofresponsibility for all aspects of consent, confidentiality, imagequality and secure image transmission and storage.

In Victoria, the collection, distribution and storage of photographicimages of patients is governed by Health Privacy Principles (HPP)found in the Health Records Act 2001 (Vic). Other states also haveHPP which regulate dealings with health information in essentiallythe same way. In addition, the National Privacy Principles found in thePrivacy Act 1988 (Cth) and the Health Services Act 1988 (Cth) mirrorstate legislation in relation to collection, use and disclosure of per-sonal information and data transmission and security.

Clinical photographs constitute health information. In broadterms, it is necessary to obtain consent to collect, use and store this

information; consent must involve an understanding of the purpose,use, disclosure and storage of the information. It is a requirementthat the individual whose health information is collected is able togain access to that information, and is informed of that fact. Consentshould be documented. Health information must not be deleted for aperiod of at least 7 years for adults and until children reach 25 yearsof age. While some requirements do not necessarily apply to trulyunidentifiable photographs there is no consensus with regard to whatconstitutes an unidentifiable image and it is prudent to consider allclinical images as potentially identifiable. The ‘blacked out eyes’technique is widely recognised as inadequate to render an imageunidentifiable.

While it is likely that photographs are the property of the cliniciantaking them in a private practice setting (and do not belong to thepatient), it should be recognized that in the case of hospital employ-ees, health information (and thus photographs) are the property ofthe employing institution.

Ethical as well as legal considerations also arise in relation to thecapture of some clinical photographs; and such considerations havebeen reflected in professional Codes of Ethics (e.g. Royal Australa-sian College of Surgeons and American Society for Surgery of theHand) and may have direct impact on professional practice andaccreditation.1–3

There is ample evidence in everyday practice to support the con-tention that surgeons and the organizations in which they work areexposed to significant legal and reputational risk by current practiceswith respect to clinical photography. We now also have two recentunpublished surveys in Australia which, while they point to the valueof clinical photography in surgical practice, also identify the lowlevel of compliance with legal and ethical requirements associatedwith the capture and management of clinical images.

More than 90% of 130 plastic surgeons and trainees surveyed in2011 routinely took clinical photographs and considered their prac-tice to improve patient outcomes. Photographs were used for docu-mentation, research and teaching, to assist provision of informationto patients and to facilitate communication between clinicians.Mobile phone cameras were used by 40% of respondents, who

Some materials contained in this manuscript have been presented previ-ously at the 2011 Plastic Surgery Congress, Gold Coast, Queensland.

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valued personal devices of this type in part because of the ease oftransmissibility of images to colleagues. A disturbingly high propor-tion (more than half) accepted ‘implied’ consent as adequate for thecapture of images.

Similarly, in a 2012 survey of clinicians and medical studentsconducted in a Victorian public hospital, 65% of respondents hadtaken images on a mobile phone camera, with more than 40% havingno password protection on their personal device. A quarter did notobtain any kind of consent for image capture of sensitive medicalinformation. Two-thirds of respondents kept these images and morethan 90% shared images via insecure methods (SMS, MMS ande-mail). Less than a half of these respondents thought that the hos-pital owned the images. Sixty percent were unaware of the existenceof a hospital clinical photography policy and only 5% had read sucha policy.

Issues regarding the ethics and legality of taking clinical photo-graphs using personal cameras have been addressed in various pub-lications and are of increasing concern as such devices becomemore prevalent and the practice more widespread.4 In addition, theconsequences for patients of having personal information distributedthroughout the Internet and beyond are significant and potentiallycatastrophic. In practice, however, it appears that such considera-tions have had little impact on many Australian surgeons, andclinical photography remains largely unsupported by an appropriateinfrastructure that enables compliance with legislation.

It is to be expected that solutions will be developed by institutionsand individuals that will address these deficiencies; however, to date,none has appeared.5 In the meantime, while technology to supportcompliance catches up with developments in the way that cliniciansuse personal devices and becomes widely available, surgeons andtrainees should exert considerable care in their employment of clini-cal photography, and if necessary, change current practice to ensurethey are not engaging in activities with potentially severe legalramifications.

Conflict of interest

Material contained in the piece was originally submitted as aresearch article and has been resubmitted as part of this perspective

piece at the suggestion of the Editor for Plastic & ReconstructiveSurgery, Professor Anthony Penington.

Since the original submission, the first author has acquired aconflict of interest: along with one of the other authors of this piece,Mr David Hunter-Smith, she is a shareholder of PicSafe Medi, acompany which has developed and is marketing a mobile phone appto support compliant clinical photography.

References

1. Royal Australasian College of Surgeons. Code of Conduct. 2011. [Cited15 June 2013.] Available from URL: http://www.surgeons.org/media/346446/pos_2011_02_24_code_of_conduct_2011.pdf

2. American Society for Surgery of the Hand. Code of Ethics andProfessionalism for Hand Care Professionals. 2008. [Cited 15 June2013.] Available from URL: http://www.assh.org/Members/Ethics/Pages/CodeofEthics.aspx

3. Press B. Digital Photography in the Operating Room. 2010. [Cited6 Oct 2011.] Available from URL: http://www.assh.org/Professionals/PracticeManagement/DigitalImaging/Pages/DigitalPhotographyintheOperatingRoom.aspx

4. Burns K, Belton S. Click first, care second photography. Med. J. Aust.2012; 197: 265.

5. McDonald K. Cloud-based solution for mobile clinical photography.Pulse IT 2012; 19: 42–3.

Heather Cleland,*‡ MBBS, FRACSRichard Ross,† BSc (Hons), MBBS

Michael Kirk,¶ MBBSDavid Hunter-Smith,‡§** MBBS (Hons), FRACS, MPH

*Victorian Adult Burns Service, †Plastic, Hand & FaciomaxillarySurgery Unit, Alfred Hospital, ‡Department of Surgery, Central &

Eastern Clinical School, Monash University, §Plastic andReconstructive Surgery, Coastal Plastic Surgery Centre,

Melbourne,and Departments of ¶Surgery and **Plastic Surgery,Peninsula Health, Frankston, Victoria, Australia

doi: 10.1111/ans.12248

What Chappel v Hart really stands for and some ramifications for

innovative surgery

Thomas Hugh describes Chappel v Hart (1998) 195 CLR 232 as‘legal non-sense’.1 Others agree.2,3 This paper offers another per-spective. Chappel raised a novel question of causation to which theCourt gave a policy-influenced answer. This answer has ramifica-tions for surgeons who undertake innovative procedures in whichthey are inexperienced.

A patient who sues a surgeon for non-disclosure must provebreach of the duty to disclose a material risk of injury and a causal

link between the breach and any injury suffered. It is not necessaryto show that the surgery was negligently performed. On the breachissue, Hugh criticizes the Chappel Court for finding that Chappelhad wrongfully failed to disclose the risk of Dohlman-related vocalcord palsy (VCP). Hugh argues that the complication was unknownand hence Chappel could not have been under a duty to disclose it.However, this overlooks the fact that Chappel had accepted beforethe High Court that VCP was a complication he should have

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© 2013 Royal Australasian College of Surgeons