Today’s mobile recording devices allow individuals to easily capture private moments and then immediately share them with family and friends. Scroll through any social media platform and you’re likely to find several postings of friends, family, and coworkers posing for hospital setting photos ranging from “newborn baby” and “get well soon” to “send us your prayers” and “we’re over the moon.”
This may seem like an unassuming occurrence, but the truth is that patients and their visitors have no legal right to do so. This means that a hospital is free to enforce policies restricting any occupants from taking any audio or video recordings without first obtaining the expressed permission of the hospital. While this may seem like a bit of an overkill, hospitals concerned with liability issues surrounding the use of police body cameras on their premises may soon find it advisable to do so.
Under the HIPAA Privacy Rule, a hospital is not responsible for the actions of individuals who are not members of the hospital’s “workforce” which HIPAA defines as “employees, volunteers, trainees, and other persons whose conduct at work is under the direct control of the hospital.” This means that video recordings by patients or their visitors which inadvertently record the private information of another patient would not necessarily constitute a HIPAA violation.
But what if the personal information was being captured not by a trusted family member or friend, but instead by the passive recording of a police body camera acting as the the equivalent of a modern witness?
Walk into any hospital and you’re likely to witness the vast spectrum of human emotion; the joy of a new birth, the grief of a passing loved one, the turmoil of tragedy, and the agony of accident-prone pain. Emotions are revealed in a flood of interpersonal interactions as soon as you enter the lobby doors.
The emotional freedom found in a hospital is grounded in the sacred bond of confidentiality entrusted to each doctor, nurse, and technician. Any intentional breach of this trust, is met with immediate and severe punishment. The overarching protection of this confidentiality is guaranteed by HIPAA.
HIPAA is the federal Health Insurance Portability and Accountability Act of 1996. The primary goal of the law is to make it easier for people to keep health insurance, protect the confidentiality and security of healthcare information and help the healthcare industry control administrative costs.
The average person doesn’t pay much attention to the color-coded white board posted behind the nurses desk, or the half-revealed charts sticking out from the hospital room door frames as we walk down the hall. We’re just there to visit with whomever we are there to see.
But what if a police officer wearing a body camera, who in the course of their duty stops by the nurse’s station to ask a perfectly legitimate question, unintentionally records the information posted on the board behind them? What if their body camera records an overheard conversation between a doctor giving instructions on patient care to a nurse? What if – however passively – they record personal health information that would have otherwise remained private had it not been for the camera on their uniform? What if in the course of unforeseen events, the footage winds up on the six o’clock news? Who would be held accountable? The police? The hospital? The news?
From a liability standpoint, hospitals are going to want to get out in front of this as early as possible. It is highly advisable for each hospital to write a formal letter to their respective police departments clearly stating two important points:
- That under no circumstance are body cameras ever to be allowed on the premises of the hospital;
- That in accordance with the current HIPAA audio/video recording policy, any and all audio/visual recording must be conducted via manually controlled device with a clearly visible indicator light so that those being recorded have a clear understanding of the start of recording / end of recording process.
HIPAA guidelines do require “appropriate safeguards” be put in place by each hospital in order to best protect the privacy of health information. This is definitely an area where technology is moving faster than the law can advise, but if a patient’s private information is made public through the use of a police body camera, a hospital’s failure to articulate their appropriate safeguards would indeed find itself in the midst of a very real HIPAA violation.
Awareness + Preparation = Safety
Spencer Coursen is a nationally recognized threat management expert who has an exceptional record of success in the assessment, management, and resolution of threats, domestic and global security operations, investigations, policy authorship, and protective strategy.