This is Part 1 of a two-part series on the ethical and legal questions your department should ask before implementing audio or video recording of EMS calls. Read Part 2
By Allison J. Bloom
There has been a lot of discussion about the use of audio and/or video recording for EMS calls. In some cases, the conversation centers around capturing video for training or quality assurance purposes; in others, it is about protecting patients and/or providers from allegations of misconduct or harm, or employers seeking risk management solutions to protect their agency from mischief and misconduct by employees.
There is no question EMS is a dangerous profession; accidents, assaults, and medical errors are all growing concerns in EMS, and protecting personnel and patients is paramount. However, while it is true that cameras and other imaging devices can help improve scene safety, provide real time documentation of a scene and help with quality improvement, recording of medical encounters, in either audio or video form, is also fraught with ethical, privacy and legal considerations which must be addressed before implementing new technology and putting cameras in the field.
The importance of getting consent
Have you ever called a customer service hotline and heard a recording at the beginning of the call saying, “this call may be monitored or recorded for training and quality improvement purposes?” There is a reason for that.
Many states have laws prohibiting recording (definitely audio, and in many cases video) without at least notification that the encounter is being recorded, and in many instances, all parties need to consent to the recording. This is true regardless of the purpose for which the recording is being made, even if it is allegedly for quality assurance or quality improvement purposes.
Most states also have similar laws regarding video, although a review of various state laws shows a slightly lower standard for notification of video recording to third parties. In other words, you might need to have a sign posted in the ambulance notifying patients that video cameras and/or recording devices are in use. However, that will only help once you actually load the patient into the ambulance, and it begs the question of obtaining consent or providing notification of video recording on the scene (i.e., in the patient’s home or in the roadway) using a body-worn camera.
If your patient is unconscious, impaired in some way, or otherwise unable to give consent, you would not be able to obtain consent to make a recording of the call. The doctrine of Implied Consent does not apply here. Implied Consent to medical care is a legal construct which says that in the event a person is suffering from a life- or limb-threatening condition, and is unable to give informed consent to medical care, health care practitioners may legally treat them in order to save their life - the assumption being that a reasonable person would ask for medical care if they were able to do so.
However, the doctrine only applies to the medical care necessary to save a life, not to ancillary tasks which document the care provided, such as audio or video recordings. Furthermore, consent would still need to be obtained in order to use the audio or video after the fact for quality assurance or training purposes.
What if the patient is capable of giving consent to record the encounter, but withholds it? You would not only have to have the capability to turn the recording device off and on at will, but you would also have to take time away from patient care to obtain consent, including discussing with the patient why they should allow you to record the encounter. Not only could that be an awkward conversation, but it is also time consuming.
The logistics of managing recordings
Keep in mind, too, that once patient care is recorded, the recording becomes part of the patient’s medical record, and must be kept with it. Even rear-facing cameras in the patient compartment of an ambulance which capture medical care without positive identification of the patient (i.e., you cannot see the patient’s face) still need to be preserved and attached to the patient’s medical record if they show even peripheral treatment of the patient during an IV insertion or intubation, for example.
Do you have a mechanism for adding or encoding metadata (digital “tags” or codes which describe and give information about the video) into the video to properly identify which patient the video belongs to, and a way to upload it to attach or link it to the rest of the patient’s medical documentation (i.e., ePCR, field lab results?). Does your EMS agency have computer servers which are capable of storing thousands of hours of audio and video recordings for the same length of time as you are required to keep the patient’s medical record?
What IT security protocols are in place to protect those recordings from being inappropriately viewed, hacked, or released into social media? HIPAA and HITECH rules and regulations will apply to the storage and use of the recording, as well. These are all things which must be considered and addressed thoroughly before implementing any new piece of technology which generates any kind of data or digital imagery.
Remember, the medical record belongs to the patient, not to the caregiver; as such, the patient is the one who controls (with certain limited exceptions) who that record is released to or viewed by. As a result, if a patient does not want their image used or viewed by others, they have the legal right to withhold their consent to its use.
This column is not intended as legal advice or legal counsel in the confines of an attorney-client relationship. Consult an attorney for specific legal advice concerning your situation.
About the Author
Allison J. Bloom, Esq. is currently an attorney in private law practice in the field of EMS Law. Her practice is focused on providing risk management and legal services to EMS and Fire agencies, concentrated around governance, legal and regulatory compliance, Records and Information Management (RIM) and Information Governance (IG) compliance, ethics, electronic discovery, technology, and corporate and business law. Allison is a nationally-recognized author and speaker and lectures frequently on EMS legal topics. She is also currently certified as an EMS provider in her home state of Connecticut. Contact her via e-mail at allison.bloom@abloomlaw.com.