There are significant benefits to EMS agency use of cameras in providing EMS, but federal and state law requirements must be followed to protect patient rights and avoid liability.
In this age of increasing technological ability to access information about individuals, there is a growing awareness and resentment of practices that invade one’s privacy. Yet protection of one’s privacy must be balanced against competing interests. EMS agencies are not immune from this balancing act, especially when they choose to use cameras when providing EMS.
EMS agency use of cameras
EMS agencies are increasingly using mounted vehicle cameras to record driving-related incidents and crew behavior in the cabin. Crew members must accept the recording of these matters as part of their job. However, rear-facing equipment may capture patient information. Sometimes these devices are also mounted inside the patient care compartment to capture and perhaps transmit patient information for clinical purposes. Some EMS agencies are also stepping into the realm of having body cameras attached to their field personnel to capture patient and scene information, sometimes with a microphone to record audio.
There are significant benefits to the use of these devices when providing EMS. They can help document the care provided and promote EMS personnel accountability. They can capture illegal or unprofessional conduct of field personnel and their compliance with or failure to follow protocols, as well as the conduct of patients.
The recorded images can also be used to help resolve complaints against staff, for quality improvement, for scenario-based training, and as evidence in litigation. In lawsuits, due to the often lengthy time between a patient care episode and when a crew member who provided EMS for the patient is called upon to testify about that matter, the recorded images can be used to refresh the crew member’s recollection of what transpired. They may also be used as evidence, to corroborate or rebut other evidence or testimony, and to buttress or supplement information documented in a patient care report.
Compliance with federal and state law required
When using cameras, with or without audio recording, strict controls must be implemented to both protect patient rights and avoid exposure to liability. HIPAA does not prohibit the use of these devices by EMS agencies. It also does not require patient consent when they are used to gather protected health information (PHI) for treatment-related purposes, such as documenting patient condition, mechanism of injury, or for health care operations such as using the videos for quality improvement purposes. But when cameras are used while providing EMS, HIPAA privacy and security requirements must be satisfied. Also, when used for these purposes state law may require patient consent, so understanding and complying with applicable state law is also imperative.
Before using these devices in a manner that captures PHI, HIPAA requires that a risk analysis be conducted and that risks to PHI be documented. Policies and training are required to ensure the proper use of these devices, that the images are stored with adequate safeguards, and that the PHI is not accessed without authorization, or used or disclosed inappropriately. Any footage that includes PHI should be downloaded as soon as possible from the recording device, preferably by the end of a shift. The images or video footage should be backed up and preferably encrypted.
An EMS agency also needs to have an audit trail of who accessed the images and when and for what purpose, and business associate agreements with outside entities who handle the PHI, such as a company who maintains a cloud server where the agency’s PHI is stored for backup purposes. Finally, before an EMS agency repurposes or discards cameras or stored media, it must wipe clean any PHI. The best practice is to follow NIST Special Publication 800-88, Guidelines for Media Sanitization.
In addition to HIPAA compliance EMS agencies need to ensure compliance with state law. In some states it is a crime to invade one’s privacy. What constitutes a prohibited invasion may differ among those states. Regardless of state law, best practices include lowering a patient’s expectation of privacy and using caution in sensitive situations and places, such as in a patient’s home.
To lower an expectation of privacy, consider advance verbal and written disclosures such as a tag on a crew member’s shirt and a posted notice in the ambulance in bold print stating “Body Camera in Use.” In any event, if a patient or the patient’s authorized representative asks that no pictures be taken, it is generally a best practice to honor that.
While EMS agency use of audio recording devices is beyond the scope of this article, EMS agencies should be aware that audio recording presents additional issues. State laws regarding video recording and audio recording may be very different. A few states require that individuals be informed when they are being recorded and that their consent be secured before audio recording takes place.
In addition to HIPAA and the state invasion of privacy laws, there may be other state law requirements that an EMS agency must satisfy when using cameras in providing EMS, and then handling and storing the recorded media thereafter. An EMS agency should consult legal counsel familiar with those laws to ensure that appropriate measures are being taken.
