I shared the link to the story on the ABC on the FaceBook page for this blog. There have been a number of comments on the story as well as some questions sent to me so this post will try to deal with those as well as give some more details.
The gist of the story (‘Body camera trial for Victorian paramedics as public aggression‘ ABC (Online) 18 December 2016) is that:
Victorian paramedics will wear body cameras in a trial program designed to better protect ambulance workers, as thousands of cases of violence and aggression towards them are reported each year.
Up to 150 paramedics in Melbourne’s metro west region, including the CBD, will take part in the trial which follows a successful pilot by Victoria Police.
The Premier’s media release says, inter-alia:
Similar to cameras worn by police, the cutting edge equipment will record incidents only where paramedics are in danger. It will not record all emergency cases.
Vision from the camera could be used by police for investigations and prosecutions of assault against paramedics. All patient health care details will be de-identified, protecting patient privacy.
Questions asked about the trial relate to issues of patient privacy and consent. All of the concerns raised are summed up in this email from a Victorian paramedic:
… the use of cameras makes me uncomfortable on a number of fronts. First of all, I am not convinced that cameras will reduce occupational violence (especially given the presence of police in the quoted incident did not). I am sure they will make prosecution easier, however that is a separate issue. I am concerned though, about patient privacy, data privacy, how the footage might be used in other contexts, and most importantly about patient consent to be filmed.
The police trial
When the use of body worn cameras by police was announced, it was reported (‘Victoria Police to trial body cameras’, The Age (Online) December 24 2013) that:
Cameras will only be switched on to record incidents where police members feel it is in the public’s interest to do so and will not be used to capture general day-to-day activities…
Under the trial, recordings are not compulsory and are at the discretion of the members wearing them.
Let us assume similar rules will apply to paramedics.
Will the use of cameras reduce violence?
They might if people actually think they are on camera but people who attack paramedics probably aren’t thinking that clearly. Paramedics may recall that they are on camera so they may modify their behaviour if they were tempted to abuse or hit someone. To use an appropriate analogy, however, this is really the ambulance at the bottom of the cliff, rather than the fence at the top. Video evidence of assaults against paramedics may help prosecute an offender, but that is still ‘after the event’. As a correspondent says ‘I am sure they will make prosecution easier, however that is a separate issue’ to preventing the violence in the first place.
And if you think successful prosecution of one offender is likely to effectively deter others, you have more faith in the criminal justice system than I do – see Responding to Violence against Paramedics (February 11, 2015).
The relevant law here will be the Surveillance Devices Act 1999 (Vic). A surveillance device may be a ‘data surveillance device, a listening device, an optical surveillance device or a tracking device’ and includes ‘a device that is a combination of any 2 or more’ of those devices. An ‘optical surveillance device is ‘any device capable of being used to record visually or observe an activity…’. A ‘listening device’ is ‘any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation…’ (s 3). Assuming that the body cameras worn by police and paramedics records vision, sound or both, it is a surveillance device.
With respect to the use of a listening device ‘… a person must not knowingly install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party, without the express or implied consent of each party to the conversation’ (s 6). A similar restriction applies to the use of an optical surveillance device.
A ‘private activity’ is:
… an activity carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be observed only by themselves, but does not include—
(a) an activity carried on outside a building; or
(b) an activity carried on in any circumstances in which the parties to it ought reasonably to expect that it may be observed by someone else;
A ‘private conversation’ is
… a conversation carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be heard only by themselves, but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it may be overheard by someone else;
The obligation to obtain the consent of the parties is relevant if the person doing the recording is not a party to the conversation. Activity inside an ambulance must fit the definition of a private activity and private conversation. In those circumstances, the Camera’s worn by paramedics will largely be recording conversations and activities to which the paramedic is a party, ie conversations and interaction between the paramedic and someone else in which case the recording may be made without the need to obtain the patient’s consent.
Where items are being recorded in public, eg the paramedics are treating a person on the street and the aggression is coming from third parties, then the recording is lawful if the actions of the aggressor as ‘outside a building’ or given they’re in public they may reasonably expect that they may be observed by others.
Intended and unintended consequences
As correspondents have noted there could be unintended consequences. The concern about unintended consequences is not unique to the use of cameras by paramedics – see Heather Douglas and Leigh Goodmark, ‘Beware the unintended consequences of police-worn body cameras’, Sydney Morning Herald (Online) September 30 2015.
Where a recording has been made ‘a person must not knowingly communicate or publish a record or report of a private conversation or private activity that has been made as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device’ (s 11) so the recording captured by the cameras cannot be published on YouTube. But the recording may be released ‘in the public interest’ or ‘… in the course of legal proceedings or disciplinary proceedings…’ (s 11(2)(b)(1) and s 11(2)(c)). Releasing the video where it records evidence of an offence may be justified in the public interest (s 11(2)(b)(1)).
The use of the video and/or audio in ‘legal or disciplinary proceedings…’ (s 11(2)(c)) may be more controversial. Using it to bring evidence into legal proceedings against a person who has assaulted a paramedic is the clear intention of the pilot but one would also expect that the video will be available in disciplinary proceedings against the paramedic. And that is how it should be.
Although I can’t point to data, as I understand it when police starting recording interviews with suspects, legal issues arising out of allegations of misconduct were largely removed. Where an allegation was made and it was shown that there was no substance to it, the matter resolved. Equally where the recordings substantiated the allegations issues could also be resolved without the need for complex legal proceedings and contested evidence. A win for everyone. Equally here; although the intention is to capture those that assault paramedics, it will also work in other ways. If a paramedic, to quote a commentator on my FaceBook page, does tell a patient ‘too go do an overdose’ that too will be captured and available.
Equally consider the case of Police v Wililo. This was a case where Mr Wililo was accused of assaulting NSW paramedics. The issue turned on what was said and done in the ambulance (see Magistrate O’Shane Dismisses Case Against a Man Accused of Assaulting a NSW Paramedic (January 23, 2012) and Case Of Assault on a NSW Paramedic Returns to the Local Court (July 2, 2012)). Had there been video recording that may have assisted the paramedics and police, or it may have assisted Mr Wililo, either way it would no doubt have avoided significant time and money to have contested evidence about who said and did what to whom.
The video evidence will also, no doubt, be available in other legal proceedings. One commentator said ‘I’m more worried about the lawyers and insurance companies wanting them as evidence if it all turns pear shaped or the patient dies and the family wants to sue’ and no doubt that will be the case. There are some important qualifiers here though. Lawyers and insurance companies wanting evidence already access ambulance case sheets. This will be no different. By agreeing with my correspondent I’m not agreeing with the implied suggestion that this will increase law suits against paramedics (law suits that are incredibly rare). But the evidence will be relevant in other actions. For example, assume that a defendant wants to deny that their negligence caused the injury and that the plaintiff suffered the injury by other means or at a different time. Evidence of what the patient told the paramedic about the accident, and the treatment given, may support either the plaintiff or the defendant’s claim so of course the parties will want to see it. Again that may well encourage settlement. If it’s clear that the history and treatment are consistent with the plaintiff’s version of events, the defendant will settle. On the other hand, if they are inconsistent, the plaintiff may withdraw the claim.
Another benefit may be that the use of the camera will mean paramedics do not need to attend court. If the issue is what was said or done in the ambulance, a recording may prove to be better evidence than trying to recall what was said and done some time later. That brings me to another comment via FaceBook –
I’m assuming controls would be in place, such as the cameras being wiped at the end of the shift if no incidents occur. Or even have them set to a 1 hour loop with a manual incident lock function. These could be used to reassure patients.]
You couldn’t afford to wipe the contents at the end of a shift or after 1 hour as you don’t know what will be significant later. You may determine that there was ‘no incident’ to find, three years later, an issue has arisen. Consider, for example, a patient who is treated and later dies in police custody giving rise to a death that is reportable to the Coroner (Coroners Act 2008 (Vic) s 11). The paramedic doesn’t know, at the end of the shift, that this is going to be a matter for the coroner, so wiping video at the end of the shift would be problematic.
The ‘voluntary’ use of recording is also problematic. As noted above, when the trial with police was introduced it was said ‘Cameras will only be switched on to record incidents where police members feel it is in the public’s interest to do so’ and ‘recordings are not compulsory and are at the discretion of the members wearing them’. Where there is an absence of a recording, particularly if the patient or someone else is making an allegation against the paramedic, the absence of a recording may be problematic. Where there is a record keeping system that is part of the ‘business’ (which would include an ambulance service’s business) then an entry in the record is proof of what happened. To put that into context, if the normal practice is to record the administration of drugs on a patient’s case sheet, an entry showing that the drug was administered can be used to prove that the drug was in fact administered. On the other hand, if one would expect the drug to have been given, the fact that this is NOT recorded is evidence that the drug was not given.
Hopefully readers’ can see the issue here. If the use of the cameras is voluntary, and up to paramedics to decide when to turn the camera’s on, the absence of a recording may be used to suggest for example, that no assault occurred (“if there was an event, you would have turned the camera on”) or if the allegation is against the paramedic, they deliberately didn’t record the interaction (“you wanted to abuse my client, but you didn’t want to record it, so you turned the video off, didn’t you?”).
What’s to be done?
The obvious thing to do is to ensure that the use of the cameras is appropriately monitored and regulated. In his paper The Case for (and against) Police Body-Worn Cameras (Police Accountability Project, 2015), Kaleb Cox says:
Regulations need to specify when and under what circumstances the cameras should be turned on and off, how and where the video data is to be stored and how and under what circumstances it can be accessed for complaint, disciplinary or legal purposes by both police and the public.
Fears of police selectively using their body cameras may need to be eased by legislative assurances that BWCs will be used in a fair and uniform way.
So, given the paramedic trial is to be based on the police experience, what do the police regulations say? Interestingly, and problematically, neither the Victoria Police Act 2013 (Vic), the Victoria Police Regulations 2014 (Vic) nor the Victoria Police Code of Conduct – Professional and ethical standards make reference to the use of body cameras. There is probably reference to the use of cameras in the Victoria Police Manual but I am unable to readily access that publication. To again quote Kaleb Cox:
The lack of regulations framing the usage of police body cameras may also present other problems. Even if all officers begin to wear BWCs, without adequate regulations from Parliament there remains the potential for misuse and the expansion of BWC far beyond the stated goals of accountability.
The same must be true if paramedics start using cameras without adequate regulation. In the absence of regulation it will be up to law enforcement and Ambulance Victoria (in the first instance) to determine when and how the cameras may be used but it will, if ‘push comes to shove’ be a matter for courts and judges to develop rules, practices and guidelines if the Parliament and Government will not.
A number of correspondents have raised concerns regarding the use of body cameras by paramedics. The stated intention is to use the recordings to combat violence against paramedics. Cameras are unlikely to reduce violence thought they may make prosecutions easier. Even so concerns about the broader use of the recordings and issues of patient privacy are well founded. One would hope that that the Government would consider this issues and regulate the use of the cameras. That does not appear to have been done with respect to police so one might infer it is also unlikely with respect to paramedics. On the other hand, if there has not been significant issues raised by the police use of video, it may be concluded that the benefits outweigh the potential harms. That remains to be seen.