1st Amendment Dilemma: Can a Patient Video Their Own Treatment?
In response to our discussions about the 1st 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 1st 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?
I assume the issue is whether or not the medic has the right to insist that the patient turn off the camera. From a pure 1st Amendment analysis, the first issue is whether or not there is adverse gorvernmental action. I shall assume that making a patient turn off the camera so qualifies. Next, the negative action must affect public speech. This is where I have an issue. Public speech is generally any form of speech that addresses matters of political, social, or other concerns to the community. Why is the patient filming? If it is simply to document his treatment, I do not believe there is any Constitutional right to do so. However, assuming that the filming constitutes public speech, the government still has the right to prohibit such actions where the activity poses a threat (or better, actually interferes with) governmental action. For example, political activity, such as protests, have been banned from fire department property as interfering with the operation of the FD. The Government may place reasonable restrictions on the time and place of speech-just not the content. I guess from a practical advice perspective, I would ask–Did the filming interfer with patient care/treatment. If so,then I think the medic can prohibit the filming (documenting the reasons for doing so). If the filming is not interfering with care, smile at the camera!
Coming from a two party consent state (California) with an exception carved out when no expectation of privacy is expected (e.g. almost all conversations occurring in public), I’d argue that recording outside the ambulance would be the right of the patient, and recording inside the ambulance would be at the discretion of all parties present. However, audio recording when an expectation of privacy is expected should not delay or stop care as the legally appropriate remedy would be to engage the legal system after handing over care of the patient.
Note: Whether a legal remedy is appropriate in a legal sense, and if it’s appropriate in the sense of customer service and public relations are two different questions.
I think another interesting question is the ethical issues surrounding video or audio video recording of the patient compartment, assuming no privacy concerns (DVR or tape is under lock and key and only used for the standard HIPAA exemptions like billing and health care operations like QA/QI) and a public notice period akin to what is done for prehospital medial trials.
I know it is a different set of cirumstances, but some hospitals have prohibited videos being taken during childbirth for fear it might capture medical personnel doing something thst could come back to haunt the hospital. I imagine those doing pre-hospital care might have similar concerns but their ability to prevent the use of the camera is much more limited than the hospital. I have read where some in EMS are training personnel to do their work under the glare of the camera so they are not distracted by it. I think thats a model fire and police should also consider. It might prevent many of the problems confrontations we have seen.
Thanks Chip
This discussion follows the recent blogs and stories we have been following on a person’s right to film (photo/video) government officials at work in public places.
The 1st Circuit issued a ruling in August that reaffirmed the public’s right to film public employees, and the critical issue here is just how far can that right be pushed. That case avoided thorny issues like “Why is the patient filming” – sticking to a theme that there is a well recognized right to film and while it is not without limits – filming governemnt officials at work in public places is a protected activity.
The $64,000 question: Where does that right end? In the Ambulance?
Thanks Joe – Great points.
Thanks Dave
I think once the patient is in the ambulance, and certainly once in the ER or hospital, the right to photo/video/film is extinguished. The cases we have seen where the 1st Amendment applies have involved public places. Unless the hospital is governmentally operated – 1st Amendment protections do not apply. The argument can be made that because the back of an ambulance is not a public place we can impose reasonable restrictions on filming.
If the patient is stable and capable of filming the treatment. The legal question might be if this is abuse of emergency services. I feal confident enough in my care and skills, that if they wanted to film it , it would not bother me.
Will Rea
That is the best advice. Ignore the camera and do your job.
This is a man bites dog scenario. A quick search of the internet reveals no other issues like this have occurred although Dave Statter hits on a good point against video taping care and treatment in a hospital for fear of future litigation. That is most likely a hospital policy issue.
What I find interesting is the question of a true 1st Amendment violation if the PATIENT films the HEALTH CARE PROVIDER. I know that we have discussed the rights of a private party related to pictures and videos taken by the press/provider and the requirement for adequate signed releases in many cases in order to video or take a picture; coupled with the fact that of the open public access of filming in an equally accessible area appears to be an inviolate right.
In this question, I believe the paramedic has the right to request that the video taping be stopped but for what legal bases this request can be made is unclear. Is this a HIPAA issue? Don’t think so, only based on the taker of the video is not a HCP. Is this a privacy issue? Don’t think so as a public employee can be openly photographed in certain conditions. Is there a potential for malpractice litigation and is this the basis for the video taping? Possibly if the paramedic/EMT is negligent in care provided but I would imagine that the paramedic was pretty careful with his words and medical treatments. Personally I would not like anyone filming my provision of medical care and treatment of a patient as there is a potential for abuse. Is there a legal basis for this, probably there is none but the paramedic or EMT can make the decision for the patient to stop videotaping as it probably interferes with the provision of health care.
The last thought is, if this is a solo patient or one of several (thinking MCI). Does the patient have granted access as a MCI patient to video or are the limitations in place as there is no public access to the treatment areas. Great question.
Thanks John
I agree it is a great question and as soon as I saw it – I said to myself “Leave it to a firefighter to come up a question like this”…… and I mean that in a complimentary way!
If somebody were filming me from the stretcher their ability to do so would immediately lead me to question the legitimacy of their place on the stretcher, and my ability to provide patient care could be compromised, even if that is a tiny distraction it is not in the patient’s best interest to film their own treatment.
Considering the patient’s best interests are my objective, and their filming is interfering with that, I think I am within the law and my rights as a caregiver to take the camera from the patient if he refuses to stop filming.
In reality, this has actually happened to me, but the lady was very nice and made it kind of fun, so I didn’t mind at all and let her film away.
-No law prohibits it
-Ignore the camera (some services record medics all the time anyways)
-If it interferes with patient care, and the patient is mentally competent, the patient needs to receive that information from the medic so the patient can make informed consent or refusal.
I’ve had a patient take a picture with his cell phone while we were en route because he thought his injury was impressive. (It was.) I know at least part of me was in that pic. I wondered about the legality, but as it was his body I let it go. But as I was reading the above, something occurred to me. It may have been his body, but it was my company’s ambulance, and the interior of it at that. Would that be considered private property, and would that make it illegal to take a picture of it, or portions of it, or to video tape inside of it? The owners of a mall may expect that visitors may whip out a camera and take pictures of themselves, thereby taking a picture of a store or two at the same time, but since the ambulance is being used for a private medical transport, would that change the dynamic-even if it’s the patient who took the pic/video? Could the company say THEY have an expectation of privacy? (CT is such a litigious state…)
Medic
The fire lawyers have been debating the scope of the right to video/film and the general consensus is that it is limited to public places. There is no 1st Amendment right to film in a private or restricted area. The back of an ambulance would be such a location. also – if you are a private provider – much of the 1st Amendment discussion does not apply to you because you are not a government employee.
As for you being in the picture – he can take the photo and he can use the photo for newsworthy purposes but if he uses it for any other purpose – and you are identifiable (facially identifiable) he needs your permission.
Folks
Dave Statter shared these links from the ACLU on the rights of photographers. This helps clear up alot of the questions.
http://www.aclu.org/print/free-speech/know-your-rights-photographers
http://www.aclu.org/free-speech/you-have-every-right-photograph-cop
https://secure.aclu.org/site/SPageNavigator/TSA_Travel_Complaint
Here’s our recent Blog Talk Radio Show discussing this issue:
http://www.blogtalkradio.com/fireengineeringtalkradio/2011/09/15/episode-107-fire-service-court
Well if the patient is well enough to use their phone to record your their treatment, maybe the ambulance should not be there to begin with.
I was cited for obstuction 2 weeks ago for obstruction for filming medical personel in a public place. I was 30+ feet away and sitting quietly on a park bench. I’m not sure if it it legal or not here in Minnesota, but I will soon find out…..
Drew
First off – don’t be posting stuff here that might get you in trouble. When you were cited did they mention that “Anything you say can and will….”
Well it can and it will…. so please use your head about what you say in public.
Secondly – get yourself a lawyer ASAP.
Third – hand your lawyer a copy of the Glik case.