When the media starts snooping
Media interest in your patient’s care or treatment is a daunting prospect for any doctor, but being the subject of an undercover investigation can be even more challenging. Dr Caroline Osborne-White shows how these situations can be handled.
If a journalist asks for comment on a patient’s treatment, there is usually time to take stock, discuss an appropriate response with your medical defence organisation (MDO) and prepare for any further media inquiries.
Being the subject of an undercover investigation is less common, but at Medical Protection we have supported some private practitioners in such cases.
Covert media investigations can be particularly unnerving and challenging for doctors, as a journalist may in some cases have posed as a patient and recorded a number of consultations secretly.
This means the journalist already has information – whether that be film footage or a voice recording – and you may feel your options in terms of how to respond are limited. You might also feel deceived and begin to check the patient records or run over in your mind what happened at the previous consultations.
A doctor may be alerted to the fact that they have been the subject of an undercover investigation when the journalist, or perhaps a producer at a broadcast channel, makes contact to ask whether they would like to provide a comment or response.
If this happens, it is understandable to feel irritated and defensive, but try to avoid getting drawn into conversation on what did or did not happen, as anything you say may be construed as a comment and used in the programme alongside the footage or recording.
Protect confidentiality
As with responding to any question from the media, on undercover reporting or otherwise, also remember your duty to protect patients’ confidentiality and to follow GMC guidelines.
You should not reveal any details about a patient’s care or treatment, even if it is revealed that they were an actor or a journalist.
This can be frustrating, especially if you are trying to defend your actions or mitigate potentially negative coverage. It is important to remember that even acknowledging that a patient is registered with you would be a breach of confidentiality.
Instead, try to stay calm and professional and find out as much information as possible – in particular:
The contact details and name of the producer or person who has made contact;
When and where the undercover reporting took place;
Full details of the programme/channel;
The date the programme will be broadcast;
In what context the film footage or recording will be used;
Who else will feature in the programme;
The deadline for submitting any comment.
At this point, contact your MDO immediately, providing them with any information you were able to obtain. It will work with you on an appropriate approach and response, liaise with the journalist or producer on your behalf, and try to minimise damage to your reputation.
Broadcasting code
Doctors will rightly ask how surreptitious filming or recording can be permitted in a healthcare setting and whether there is an infringement of privacy. Media are required to ensure that any secret filming or recording is carried out within the remits of Ofcom’s Broadcasting Code, which states that:
‘Surreptitious filming or recording should only be used where it is warranted. Normally, it will only be warranted if:
There is prima facie evidence of a story in the public interest;
There are reasonable grounds to suspect that further material evidence could be obtained;
It is necessary to the credibility and authenticity of the programme.’
It goes on to say that material gained by surreptitious filming and recording should only be broadcast when it is warranted, and that any infringement of privacy in programmes, or in connection with obtaining material included in programmes, must be warranted.
Where broadcasters wish to justify an infringement of privacy as ‘warranted’ in this context, they should be able to demonstrate why in the particular circumstances of the case it is warranted.
If the reason is that it is in the public interest, then the broadcaster should be able to demonstrate that the public interest outweighs the right to privacy.
Examples of public interest would include revealing or detecting crime, protecting public health or safety, exposing misleading claims made by individuals or organisations or disclosing incompetence that affects the public.
Surreptitious filming
The code defines secret filming or recording as surreptitious filming or recording including the use of long lenses or recording devices, as well as leaving an unattended camera or recording device on private property without the full and informed consent of the occupiers or their agent.
It may also include recording phone conversations without the knowledge of the other party or deliberately continuing a recording when the other party thinks that it has come to an end.
The GMC has produced some guidance on audio and visual recordings that are for use in widely accessible public media.
Paragraph 40 of this guidance makes clear that Ofcom’s Broadcasting Code, which covers all UK broadcasters, requires consent from patients for broadcasting of any recordings to be obtained in a way that is consistent with this guidance.
Complaints
If you have concerns about a TV or radio programme, you can complain to the broadcaster directly; for example, if you feel that something is factually incorrect or misleading or if you are concerned that patient consent was not sought appropriately for a particular recording.
If a programme has already been broadcast and you believe that you have been treated unfairly – or that your privacy has been infringed without good reason in the programme or in the way it was made – you can complain to Ofcom.
If you have similar concerns about a newspaper or magazine, it should be directed to the Independent Press Standards Organisation.
It is important to remember that sometimes making a complaint or seeking redress via the media can draw further unwanted attention to the issue. Your MDO can offer advice and set out the pros and cons, and it would be advisable to seek its advice before taking action.
Good medical practice
Journalists and producers often argue that undercover investigations are important to help uncover poor practice and improve patient safety.
While doctors are under enough pressure without having to worry about hidden recording devices or agendas, it is clear that exposing perceived failings in healthcare through undercover reporting is likely to continue.
A doctor could find themselves at the centre of a journalist’s story at any time – whether undercover or not – but to worry about this unduly may impact on your ability to care for patients effectively.
Be sure to always practise in accordance with GMC guidelines, making the care of your patients your first concern.
Contact your MDO immediately if you are made aware you have been the subject of an undercover investigation or are approached for a comment by media to ensure that you have appropriate advice and support.
Dr Caroline Osborne-White (right) is a medico-legal adviser for Medical Protection
