EMS Scene Photography Legalities

How to ensure photos from the field don’t violate a patient’s rights to privacy and confidentiality

 

 
 
 

W. Ann "Winnie" Maggiore, JD, NREMT-P | | Thursday, September 16, 2010


In a recent JEMS.com article, Judith Acosta reviewed the reasons EMS providers may feel compelled to take photographs at scenes. Although she brought up some good reasons, others she mentioned—especially concerning the mental health of the photographer—made me realize that perhaps it’s time for a review of the legal issues involved with scene photography and publication.

Last year, an Oakland-Tribune photographer was arrested while taking photographs at an accident scene. He subsequently filed a civil rights suit, alleging that the police violated his First Amendment right to photograph vehicle accidents. Despite the fact that the reporter was wearing a press pass at the time, an Oakland police officer told the reporter to leave the scene. Although the reporter argued that he had a right to be there, he was handcuffed and sat on the scene for a considerable amount of time, leaving passersby to wonder if he was the person who caused the accident.

In dismissing the reporter’s case, U.S. District Judge Charles R. Breyer iterated that members of the press don’t have a First Amendment right to access accident scenes when the general public is also excluded. Breyer indicated that the suit may not have been dismissed had the reporter presented evidence that the general public wasn’t excluded from the scene. Breyer wrote, “…common sense dictates that members of the general public are not allowed to exit their cars in the middle of the freeway to view an accident scene” (refer to an article in the San Francisco Chronicle for more information on the case).

What does this mean for EMS responders who have been given access to a scene for the purpose of helping accident victims? In some situations, yes, there is a First Amendment right to take photographs of events that occur in the public view. But, as Acosta mentioned in her article, we’re not reporters, and taking video isn’t our role on a scene. When we respond to a scene it’s for the purpose of patient care. If an EMS responder takes photos or videos of the scene, it leads me to wonder whether they didn’t have enough to do or had their priorities a little scrambled. It’s also important to remember to keep out of the way of law enforcement and EMS who are actually working on patients or engaged in mitigating the emergency.

No right exists to take photographs or video inside of a patient’s home. In fact, if you work for a government agency, taking photographs inside a patient’s home can be considered an illegal “search” under the Fourth Amendment—particularly if the photograph is published and results in emotional harm to the patient or their family. In addition, the area inside of the ambulance or air transport unit is a place where a patient may have a “legitimate expectation of privacy”—this is the legal term used to describe a situation where a person believes their Fourth Amendment rights have been violated.

Is scene photography always a problem? No. Should employers become involved? Yes. There are many good reasons for taking still shots and video at a scene, such as for training and public relations purposes. However, be aware that the photographs you take may later be subpoenaed if litigation arises against the EMS agency for medical negligence. Similarly, a photograph or video of a misstep in prehospital care can be used against you, just like documenting good care can be used by attorneys in your defense.

If your service doesn’t currently have a protocol governing scene photography by employees, it should. The protocol should state that all photography will be done with equipment owned by the service and pursuant to its service protocols. Providers shouldn’t take still or video photography on their private cell phones because these devices are carried with them when they leave their shift for the day. Furthermore, if a patient objects to the photography, it’s a good idea to stop since they may feel as though they’re being exploited by the media. When someone in an EMS uniform is taking pictures or video, the patient may perceive that the provider or agency is stepping out of its role. Your service should also have release forms that patients can sign, granting permission for you to photograph them for training purposes. A consistent and professional approach should be taken with respect to scene photography so that we can reap the benefits without stepping on our patient’s rights to privacy and confidentiality.

Related Links
At the Push of a Button: Now's the Time to Develop and Enforce a Photo Policy
The Unexpected Consequences of On-Scene Photography

References
1. Acosta, J. The Unexpected Consequences of On-Scene Photography. Jems.com, 2010.
<http://www.jems.com/article/administration-and-leadership/unexpected-consequences-scene>
2. Kemp, Ray. At the Push of a Button: Now's the Time to Develop and Enforce a Photo Policy. Jems Magazine, July, 2008. <http://www.jems.com/article/administration-and-leadership/push-button-nows-time-develop>
3. Lee, H. Judge: Media Coverage Depends On Public Access. San Francisco Chronicle 4 June 2009. <http://articles.sfgate.com/2009-06-04/bay-area/17208340_1_suit-ray-chavez-accident-scene>
 




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Related Topics: Administration and Leadership, Legal and Ethical

 
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W. Ann "Winnie" Maggiore, JD, NREMT-PWinnie Maggiore is an attorney and paramedic in Albuquerque. She is a shareholder at the law firm of Butt, Thornton & Baehr, PC where she defends physicians, dentists, oral surgeons, nurses, paramedics and other health care providers, as well as law enforcement officers, against lawsuits and administrative enforcement actions. She is an author of many EMS legal publications, a member of the JEMS editorial board, and holds a volunteer faculty position in the Department of Emergency Medicine at the University of New Mexico.

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