A correspondent who works ‘in an event health services role’ has ‘an enquiry regarding bodycams’. They write:
With the recent facilitation of NSWA paramedics utilising Body cameras, I was wondering if you could advise how this affects private EMS. For example, many security providers now utilise body cameras. When on scene whilst a patient is being treated are they able to continue filming? Or does this legally pose a legitimate confidentiality issue? Are we obligated as the treating clinicians to advise them to disable the camera?
Based on statutory ambulance services facilitating body cameras for staff members I am wondering if this has made any changes to legislation regarding patient confidentiality and thus where we stand as clinicians.
The simple answer is that there is no change for private EMS.
As for security personnel, they have no particular right to wear body cameras and are bound by the Surveillance Devices Act 2007 (NSW). That Act (and similar legislation in other jurisdictions) has been discussed in many posts on this blog – see https://emergencylaw.wordpress.com/?s=surveillance
But if we assume, for the sake of the argument, the security services are using the cameras lawfully, the obligation to maintain the patient’s privacy is an obligation on the paramedic, not the security officer. The Code of Conduct for paramedics says that good paramedic practice includes ‘providing appropriate surroundings to enable private and confidential consultations and discussions to take place’ (Paramedicine Board Code of conduct (interim) [3.4(f)]). That cannot always be possible where a person is being treated in a public place but the obligation to shield the patient (if possible) or to remove the patient (again if possible) is with the paramedic. The security guard is not in breach of the paramedics’ code of conduct as he or she is not bound by it. To try to comply with the code, a paramedic or other ‘treating clinician’ can ask the security person to stop filming but they can’t ‘advise’ them or require them to do so.
As for the use of body cameras by NSW Ambulance paramedics, the Surveillance Devices Amendment (Body-Worn Recording Devices) Regulation 2019 (NSW) amended the Surveillance Devices Regulation 2014 (NSW) by adding regulation 5. The new regulation 5 says:
5 AMBULANCE OFFICER’S USE OF BODY-WORN RECORDING DEVICES–TRIAL
(1) This clause expires on 30 November 2020.
(2) An ambulance officer is exempt from sections 7 (Prohibition on installation, use and maintenance of listening devices) and 8 (Installation, use and maintenance of optical surveillance devices without consent) of the Act in relation to the installation, use and maintenance of a body-worn recording device if the device is used in accordance with this clause.
(3) A body-worn recording device is used in accordance with this clause only if–
(a) the ambulance officer using the device is acting in the execution of the ambulance officer’s duty, and
(b) the device is attached to the uniform of, or is otherwise worn by, an ambulance officer, and
(c) at least one of the following apply to the use of the device by the ambulance officer–
(i) before making a recording, the ambulance officer made a reasonable attempt to ensure that the persons likely to be recorded by the device are aware that the device is capable of recording images or sound, or both, or
(ii) in the opinion of the ambulance officer, there is a significant risk of harm to the ambulance officer or another person, or
(iii) the recording of images or sound, or both, by the device is inadvertent or unexpected.
(4) In this clause–
“body-worn recording device” means a listening device or optical surveillance device, or both, worn by a person.
“ambulance officer” means a paramedic or other member of staff of the NSW Health Service who is employed primarily in connection with the provision of ambulance services in the Ambulance Service of NSW (within the meaning of section 67A of the Health Services Act 1997).
First and foremost, this regulation only applies to employees of the Ambulance Service of NSW. It there has nothing to say about, and no application to, private EMS providers or their employees, paramedics or not. So there has been relevant changes to the legislation (above) but it is not of general application. For paramedics not employed by NSWAS, nothing has changed.