EMS Insider, Legal Consult

Body Cameras in EMS

In the wake of recent events in Ferguson, Mo., and other situations calling into question the conduct of police officers, hundreds of police departments nationwide are equipping their officers with body-worn cameras. Should EMS providers also have them? The improved technology and low cost certainly make body cameras a viable option for many EMS agencies. And there are many benefits of using them, but there are legal risks as well.

 

One of the most significant benefits is that body cameras can help improve “accountability and transparency”—a key phrase for EMS in the healthcare reform era where accountability and transparency in providing patient care are becoming the watchwords of all that we do. As EMS professionals we have an obligation to be accountable to the public, our agency, our coworkers and, most importantly, the patients we serve. They deserve nothing less than our best efforts 100% of the time—and many see the use of body cameras as an effective way to help keep that effort at 100%.

Benefits of Body Cameras

Put simply, body cameras provide a type of supervision that is often missing in EMS. EMS agencies do not have the luxury of sending a supervisor on every call. And it is just human nature that when you are being watched by someone in authority, you tend to behave better. Burnout, fatigue, and plain old bad attitudes and laziness can lead to poor conduct or shortchanging the patient. These vices are less likely to occur when the actions of the EMS providers at the scene are being recorded. In addition to increasing accountability, body cameras can be a valuable tool in quality improvement, providing a direct visual and audio record of a patient encounter. Case critiques and run reviews can be much more effective and educational when the actions of those on scene can simply be replayed.

 

Scene safety, which is a big concern of EMS providers, can also be enhanced through the use of body cameras. As the public becomes more aware that public safety providers are wearing body cameras, or when patients or citizens notice the body camera, there may be fewer cases of assault or other aggressive behavior by patients and others.

The Legal Pros & Cons

There are positives and negatives from the legal perspective. Body cameras can provide an excellent record in the event your actions on the scene are questioned by the patient or others. Video recordings can be important defense tools in claims of misconduct, protocol violations or negligence. Though potentially a negative, these recordings can help avoid protracted litigation if the EMS provider’s conduct was shown to be improper or mistakes were made. It is usually best (and likely less expensive) to fess up and resolve the issue early when you know you were at fault.

Patient Privacy & HIPAA

The use of body cameras brings significant patient privacy concerns. But contrary to what many may think, the recording of a patient encounter is not prohibited under HIPAA. Body camera recordings are typically used for “treatment” (documentation of patient condition, mechanism of injury, etc.) and “healthcare operations” (quality assurance) purposes. HIPAA permits these activities and does not require patient authorization when properly collecting and using patient information for these purposes. So the act of making the video and properly using it for treatment and QA reasons is not the problem. The biggest problem is what is done with the video files after the encounter and proper use.

 

 

Body camera recordings would likely contain protected health information (PHI) that must be safeguarded under the HIPAA security rule. That means there should be protections such as unique user names and passwords in place to ensure only authorized personnel have access to the recordings. The recordings also need to be backed up, stored at a physically secure location and properly disposed of when your agency is ready to destroy them. Finally, all recordings should be encrypted wherever possible, whether stored locally or on a cloud server. Keep in mind that the longer you store the recordings, the longer those recording are susceptible to improper use or disclosure. You don’t want a big data breach on your hands! EMS agencies should consider retaining these recordings only on a short-term basis (measured in weeks and not months). There should be a strictly enforced policy in place that carefully defines how long videos are kept, the manner in which they are kept and who will have access to them and for what purpose.

 

Keep in mind that public agencies such as police and fire departments that provide EMS but do not bill for those services are typically not HIPAA “covered entities.” So HIPAA may not apply to them. But HIPAA does apply to the vast majority of EMS agencies.

State Law Protection from ‘Invasion of Privacy’

In addition to the federal HIPAA regulations, every state has laws against “invasion of privacy” or “intrusion upon seclusion” that may also govern use of body cameras. The key to minimize potential invasion of privacy claims is to lower the patient’s expectation of privacy and put the patient on notice that you are recording the event for treatment or quality assurance purposes. The expectation of privacy is high in the patient’s home and much lower on a public street or in the back of your ambulance. EMS agencies that wish to use body cameras may want to prohibit recording in a patient’s home, unless the patient gives permission. Providing the patient with notice, such as verbally advising the patient of the body camera, or wearing a uniform tag that says “Body Camera in Operation” or similar language can help reduce the expectation of privacy and minimize risk.

 

Some states, such as Pennsylvania, also have wiretap protection laws that may limit your agency from making an audio recording of the patient (or others) without their permission. But there may be public safety and other exceptions in those laws that could allow the recording, so you must discuss any state law implications with legal counsel before using body cameras.

State ‘Right to Know’ Laws Compound the Problem

Most states also have “right to know” laws (RTKLs) that may give the public the right to access at least a redacted version of a body cam video created by a public EMS agency. Public agencies nationwide are wrestling with this major issue for two primary reasons. First, the data storage space needed to save and archive video files (and redact portions of them) can be massive and very costly. Which is a big reason why the video files should typically only be stored for short periods of time and only for a longer period when a particular video is “flagged” (such as when a patient complaint is made, or a crime scene is involved). Second, to what extent can the public access these videos and to what extent should specific images on the video be redacted? This is a major point of public debate, and EMS agencies could be saddled with significant costs in time and IT labor as citizens request body camera files from public agencies on a more frequent basis.

 

Many RTKLs have not kept up with the evolving technologies and may not clearly address this issue. In most cases, private EMS companies will not come under state RTKLs unless they are considered agents of the government, which could be the case in some municipal contract situations. Public EMS agencies should have their legal counsel review their RTKL to determine the extent of the burden that body camera videos may present for them.

Comprehensive Operational Policies are Essential

There will be operational headaches if your agency decides to deploy body cameras. You must develop a clear and carefully crafted policy on their proper use, and education of the staff is absolutely critical. An important policy consideration will be to clearly and objectively define when the body camera will be activated, so as to minimize user discretion due to bias or other factors. Consider issuing a news release and implementing other public education efforts to put the public on notice that body cameras may be used—this can help reduce expectations of privacy and enhance public understanding and acceptance.

 

One big key to avoiding risk and liability with the use of body cameras is to safeguard and secure the video files after the recording is made. Strict policies on storage, proper use and destruction of the video files are absolutely critical. The problem is fighting human nature (and curiosity) when staff members know that a body camera was used in a unique or interesting patient encounter. Naturally, people want to snoop! But the last thing you want is a video file ending up on social media—that could violate HIPAA or other privacy laws, and spell penalties and significant harm to your EMS agency’s reputation.

 

Finally, the laws of each state vary widely when it comes to making audio recordings of others. Public EMS agencies need to be particularly concerned with laws that govern citizen access as these videos could be considered public records. Seeking qualified legal counsel is absolutely critical before deploying body cameras in the field.

 

The bottom line is that as technology evolves, EMS agencies need to consider new devices and how they can best be used to maximize the quality of care provided to the patient, as well as the safety of the patient and EMS personnel. Careful consideration of all the pros and cons must take place and legally sound policies developed well before you place the order for body cameras at your EMS agency.

 

NOTE: The author appreciates and recognizes the valuable editorial assistance of Ryan Stark, Esq., in the preparation of this article.