Photographs did not breach privacy; there were no privacy breaches in the publication of photographs of caregivers and rest-home residents in Kai Tiaki Nursing New Zealand last May, says the Privacy Commissioner.

A ten-month investigation by the Privacy Commissioner has found that Kai Tiaki Nursing New Zealand had fully informed consent to publish photographs in an essay on rest-home carers looking after elderly people. The essay Who Cares was published in May last year, and provoked a strong and divided response from nurses and the public about the value and purpose of the photos, including five complaints to the Privacy Commissioner. Some of the 39 images showed carers with residents who were near-naked and engaged in intimate daily routines such as showering and toileting.

Commissioner Marie Shroff said the elderly people concerned or their families had known the photographs were to be published in the journal, as part of a project to highlight the work of carers with elderly people in residential care. They had given their consent at each step of the project.

Most of those who complained were concerned the photographs were exploitative, she said. The complainants also wanted to know if informed consent had been given to their publication, and whether privacy principles had been breached. There were also allegations that the photographs were misused as propaganda material for a union pay claim.

"It appears clear from our inquiry there was a willingness to be involved by all the subjects or their representatives, and they agreed with the aims of the project," Shroff said.

The Commissioner's report (see www.nzno.org.nz, hit the Kai Tiaki icon) contains a description of the project's genesis, outlines the project aims, and describes the processes used by photographer Alan Knowles to set up and take the photos, gain consent from the two rest-homes involved, the carers and residents, and to recheck these consents before publication.

"There is no evidence of coercion, bad faith or compulsion in the collection of the information for the photographic essay. On the contrary, it appears clear from our inquiry that there was a willingness by all subjects or their representatives to be involved, and that they agreed with the aims of the project ['to raise the profile of aged-care workers in New Zealand'].

While the powers of the Privacy Commissioner were confined to privacy issues only, other matters raised by complainants, eg the ethics of caring professions and the use of the powers of the welfare guardians, were beyond her jurisdiction. "No doubt the debate about the wider ethical matters involved will continue."

The debate about the publication of the photographs had been useful she said. "Privacy is an important freedom. It includes freedom of the individual to maintain and protect identity, freedom from unwarranted intrusions into personal space, and freedom to make choices about how much we want other people to know. ... Our investigation shows that great care was taken over a period of time to ensure that the residents and carers involved were fully aware of what they were consenting to. Old people, just as much as younger ones, have the right to make these choices if they wish."

Project brought unintended consequences 

Shroff's report expresses much sympathy for and gratitude towards the families and carers who agreed to talk to her or her staff during a difficult time. "It became apparent during the course of the inquiry that some of the carers and families of the residents were deeply affected by the national media exposure and public furore over the publication of the photographs. Some of the families have since lost relatives who were subjects of the photographs. Some families commented that they would not have become involved in the essay if they had anticipated the resultant public furore. The complaints and the focus on the photographic essay have had an impact on them all to a greater extent than they first envisaged.

"The lesson to be learned, especially for those caring for vulnerable people, is that wider consequences can unexpectedly flow from well-intentioned decisions made within a narrow context. The reality of the public and media environment today is that those of us who do not wish to be captured in the spotlight of public attention need to be increasingly cautious about revealing our personal information." The report makes no format recommendations. However, Shroff said further use of the photographs without renewed consents, eg for artistic purposes, might constitute a breach of the privacy principles.

Responding to the Commissioner's report, NZNO president Marion Guy said it was pleasing she had found that all the correct consent processes were followed. "The investigation serves as a reminder to us that we must ensure that ethical, consent and privacy issues are current when publishing photos or articles in the journal."

Chief executive Geoff Annals said he was not surprised the investigation had revealed the processes undertaken by photographer Alan Knowles and by the co-editors in deciding to publish the photo essay had proven professional and robust. He added, "There is much to reflect upon in this whole matter. The Commissioner's report is an essential and important addition to the further reflection that should take place around the issues of privacy, dignity, personal autonomy and the professional practice of nurses in caring for the frail elderly in particular, and vulnerable people in general. There are lessons here for us all."

Knowles said it was "nice to be vindicated by such an exhaustive and independent enquiry. I am relieved on behalf of the carers, the employers, NZNO and the families, all of whom have been through torrid times over this, which they did not deserve."

NZNO's board of directors commissioned its own report last year investigating NZNO's internal processes around publishing the photo essay. This report, put together by consultant Shayne Mathieson, was presented to the board last November and contained a number of recommendations. However, it was decided no action would be taken until the Privacy Commissioner had completed her report.

Annals said he would revisit these recommendations but did not anticipate any significant changes to the journal's operation.

By co-editor Anne Manchester