1st Amendment Dilemma: Can a Patient Video Their Own Treatment?

In response to our discussions about the 1^st Amendment and the right of the media and citizens to photograph emergency scenes, I received a great question from Firehrguy. We will turn that into today’s burning question:

One of our Paramedics asked if there was any rule on a patient recording and filming their treatment. He had a patient that was recording the Paramedic as he was taking vitals and assessing the patient and the patient recorded all this with his phone.

I am not aware of any law or case that even remotely begins to address this issue. The closest analogy I can think of would be whether or not an arrestee has a right to film his/her arrest, but that analogy is admittedly not a good one.

While certainly a doctor, nurse or medical provider in private practice (as a non-governmental employee) could insist that a recording device be turned off as a condition of rendering treatment, I am not so sure the same can be said of a public employee rendering aid in a public place. Public employees must respect the Constitutional Rights of patients.

What we have are competing interests. From the patient’s perspective there is the right to capture and memorialize information pursuant to the 1^st Amendment. The fact that the patient is the one doing the recording eliminates a host of privacy concerns that might otherwise arise.

Against those rights comes the needs of the situation. Certainly to the extent that photo taking could interfere with the ability of EMS personnel to deliver care, they would have a right to order the filming be stopped. However, to the extent that the filming is a mere annoyance, I think the patient may be on solid ground.

There are a host of factual issues that may limit a patient’s photo taking, such as where the filming is taking place (public place versus private place – many states prohibit photo taking in certain private places), whether there are other patients in the area (filming may violate their rights), and whether the filming includes an audio component (some states have stronger laws for audiotaping without the consent of all parties to the conversation).

Let’s open this up to the legal scholars out there. What do you think?