Body Worn Video Steering Group
The current national trend in the United States regarding the call for increased deployment of body cameras by law enforcement personnel is being lauded by many for its anticipated effect on transparency regarding uses of force and providing a true account of what occurs during adversarial encounters between citizens and police.
However, this process creates a unique issue in regards to the healthcare environment and the expectations of privacy and confidentiality that our industry holds so dear.
Such recording devices can certainly provide significant advantages in keeping law enforcement personnel safe, as well as providing evidence for post-event investigation should there be any questions or concerns about the way in which an encounter was resolved, but the unintended consequences of such recording capabilities are yet to be realized.
This technology, while not new, has recently received considerable attention in the media and among law enforcement officials. For example, in her August 2013 ruling that declared the New York Police Department’s (NYPD) stop, question and frisk program unconstitutional, Judge Shira Scheindlin included body-worn cameras as part of the judicial order.
Several high profile use-of-force incidents involving law enforcement personnel in our nation have resulted in an exponential growth of BWC technology. Unfortunately, as is often the case, technology seems to be outpacing its guidelines for proper application.
A major issue with the use of on-body video is a lack of universally accepted technical and operational standards as well as acceptable use protocols and procedures. Without such standards in place, law enforcement practitioners are working diligently to determine the proper circumstances for the use of BWCs and what impact this might have on the civil liberties and expectations of citizens’ privacy and the far reaching effects created by the long-term retention of audio and video recordings.
Understand On-Body Video’s Limitations
After the announcement that our local primary law enforcement agency would be issuing BWC technology to all of its patrol officers beginning in mid-2015, I began research on the technology and issues resulting from its use that might negatively impact our healthcare system and our patients, visitors and teammates. I reviewed relevant case studies and consulted with a number of organizations.
After reviewing many existing policies and procedures, I began work on assembling a multidisciplinary group within our own organization to research this issue in greater detail to determine the best course of action moving forward regarding the introduction of BWC technology into our hospitals and other healthcare facilities.
I also discovered that in the vast majority of articles and case studies there existed a commonality of known limitations and issues with any BWC system for law enforcement officers including:
How Will Privacy Be Protected?
The most obvious concern regarding the use of BWC technology in the healthcare environment is the expectation of privacy of our patients, visitors and teammates given the legal and regulatory circumstances that the healthcare environment necessitates. Aside from the “Covered Entity” status imposed upon the majority of our acute care facilities under the Centers for Medicare and Medicaid Services (i.e. Health Insurance Portability and Accountability [HIPAA] privacy rules), there are also additional considerations that need to be taken into account when discussing the recording of audio and video in a healthcare facility.
For example, there are very stringent rules governing the use and release of information regarding behavioral health clientele, many of whom begin their association with a healthcare provider in a hospital’s emergency department, a common area for law enforcement officers that might be equipped with BWC units. Likewise, there are certain victim and witness interviews that are often conducted within the healthcare facility by law enforcement officials such as sexual assaults, child abuse and domestic violence cases that will create a potential conflict with existing regulations due to the location of the interview and the relationship of the subject(s) with the healthcare provider as a patient.
Unlike police encounters on the street or in a public venue in which there is little if any expectation of privacy, the mere presence of a person in a healthcare facility is often times enough to make the interaction with law enforcement problematic when it comes to what information can and cannot be shared, much less recorded.
Courts, States Are Weighing in on the Issue
There have also been some recent related court cases regarding the use of such recordings, especially through social media, since law enforcement or other first responders are not considered “covered entities” under CMMS regulations. In 2013, Connecticut and New Jersey took the unusual step of making it a criminal offense for emergency personnel (fire, EMS or police) to take photos depicting patients unless the photo taking was authorized by the department (sometimes referred to as Cathy’s Law, after Cathy Bates, who was killed in a 2009 car accident in Barnegat, N.J. A volunteer first responder took a picture of Bates at the accident scene and posted it on Facebook before her family was notified). Both states also prohibit any sharing of a lawfully taken photo without the patient’s written consent.
On May 30, 2013, Maryland Assistant Attorney General Sarah M. Sette issued an opinion memo connecting photo-taking to violations of the Health Insurance Portability and Accountability Act (HIPAA) as well as state law medical privacy violations. In her memo, Assistant Attorney General Sette concluded that photos taken of identifiable patients constitute “individually identifiable health information” under HIPAA, the release of which through any means (email, social media, use in PowerPoint slides) is a violation with both civil and criminal consequences.
Even if a healthcare organization or hospital has solid policies and procedures governing their own personnel and facilities, unless local law enforcement and others adopt similar supportive language in their policies, the potential for breaches of confidentiality through a third party use of BWC still exists.
Hospital & Law Enforcement Policies Can Conflict
Due in part to the ubiquitous nature of portable electronics and their recording capabilities, many healthcare providers have developed various policies and procedures detailing the acceptable and appropriate use of recording devices on their property (both of and by patients and visitors). While many of these policies are quite comprehensive, a number of common provisions may be in conflict with predictable uses that law enforcement BWC systems will likely encounter.
For example, in several polices I read that detailed photographs and recordings of patients on their property, “patient/client recordings by law enforcement” is listed as one of the situations that may require additional written or verbal consent.
However, does this mean that the responsibility of obtaining consent is upon the law enforcement agent or a hospital representative (such as in the case of a sexual assault investigation or domestic violence interview at an emergency department)? If it is up to the law enforcement agent, will this consent be documented as a part of the patient’s record?
Will the recordings themselves be subject to HIPAA rules, even though they are not hospital property or recorded using an approved hospital issued device (something that many such policies also proscribe)? What about preservation and retention of such records? There are many questions to consider, and few answers have yet to be found.
I found that a number of law enforcement agencies have been very progressive in their approach and have adopted specific language to satisfy many of the questions about HIPAA and expectations of privacy when police officers enter a healthcare facility with such devices.
The City of San Diego Police Department policy states in part “Officers will avoid, when possible, recording people who are unrelated to the police purpose. Additionally, officers will take into account HIPAA considerations when dealing with medical and psychiatric patients. Officers should normally turn their camera off when at a medical facility and when a clinician is interviewing a subject.”
Similarly, in meeting with our own local police department to discuss this issue, their new directive regarding the use of BWC equipment will state, in part, that “…Officer(s) shall not record with BWC while in patient care areas of a health care facility, unless the patient becomes adversarial with the officer. If so, the officer shall record for law enforcement purposes only, but not record any patient/doctor conversations; having discussions with attorneys, peer support counselors, doctors, etc….”
Address Challenges Now to Mitigate Future Issues
Body worn camera systems are no longer in the realm of “exclusive” technology, and thanks to their availability and renewed calls for their deployment by various groups, they are rapidly being implemented across the nation in law enforcement agencies both large and small. With this technology comes a number of challenges, however, especially considering the unique regulatory aspects of healthcare and our requirements for confidentiality and privacy in regards to our patients.
Specific legal requirements and procedural components should be identified and discussed in detail prior to the roll out, use and expansion of body worn camera programs within the jurisdictions where your organization or facility provides direct patient care services. By assembling a multidisciplinary team of stakeholders (including local police, risk management, legal services, human resources, compliance and privacy, to name a few) healthcare security professionals can research and potentially mitigate many of the prospective issues involved with the use of such technology on their campuses.
Through partnering with local law enforcement and assisting them with expanding and/or modifying their policies and procedures regarding body cameras and their use, we can continue to provide the highest levels of safety and security for our patients, visitors, clients and teammates while providing reasonable and appropriate safeguards against potential confidentiality related issues at our facilities.
Article by Bryan Warren, director of Carolinas HealthCare System’s corporate security. He is also a featured presenter at the Campus Safety National Forum being held at the Hyatt Regency Crystal City in Washington, D.C., June 24-26.