Given this blog’s been going for nearly 8 years, it’s not surprising that issues continue to return. This question involves taking photos at an emergency scene. I’ll answer the question briefly but refer to earlier posts for more details and legal references.
My correspondent is from NSW who responded to a motor vehicle accident with persons trapped. My correspondent asks about:
… service operators taking photos of the scene. Service operators I define as Police, Fire, Ambulance, SES, VRA etc.
The other day we were called to a MVA persons trapped. A photograph was taken of the overall scene showing the overturned vehicle’s roof an SES vehicle and police rescue truck, no distinguishing features of any of the members present or anything relating to the victim or number plates etc.
- Is there a law not permitting this?
- Can this photo be published?
- Can a phone and the image be subpoenaed (taken) by police on request?
The short answers are:
- No, there is no law that says this action is ‘not permitted’. There may be internal agency policy on the matter. Note in this context the photographic policy in Appendix B to the NSW State Rescue Policy. That policy says, inter alia “All photographic images taken at a rescue incident are considered to be the property of the NSW Police Force in the first instance.” It doesn’t say who considers the photo to be the property of the police, but it’s clearly not an accurate statement of the law (see the posts referred to below).
- Yes, the photo can be published – again there may be internal policy issues and there could be issues about who owns the photo so if it was taken by a media officer for the purposes of the agency the photo will be owned by the agency, not the photographer (for details of ownership, see, in particular, Taking Photos Whilst On Duty with the NSW RFS – Amended (October 26, 2013)). Putting those issues aside, as a general rule, the owner of the photo can do what they like with it.
- A subpoena is a court order directed to a witness requiring them to attend court and give evidence or produce a document. If there are court proceedings the police or Crown (depending on the nature of the offence) could subpoena the person who took the photo and require them to attend court and produce it. If court proceedings have not commenced, eg the matter is still being investigated, then the police can of course ask for the photo but there’s no obligation to hand it over unless they have a relevant search warrant. Police cannot seize the camera or the photo unless that is required to secure the evidence as a matter of urgency (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 95 ‘Crime Scene Powers’) or the photographer has been arrested (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 27 ‘Power to carry out search on arrest’).
For more details, see:
- FEBRUARY 2, 2016 – BYSTANDERS PHOTOGRAPHING AN EMERGENCY
- SEPTEMBER 25, 2015 – POSTING PHOTOS ON SOCIAL MEDIA AS A COMMUNITY WARNING (VICTORIA)
- FEBRUARY 23, 2015 – TAKING PHOTOS, RECORDING SOUND
- JANUARY 9, 2015 – TAKING PHOTOS ON THE FIREGROUND IN SOUTH AUSTRALIA
- OCTOBER 26, 2013 – TAKING PHOTOS WHILST ON DUTY WITH THE NSW RFS – AMENDED
- AUGUST 24, 2012 – US LEGISLATION ON TAKING PHOTOS AT EMERGENCY SCENES
- AUGUST 6, 2011 – THE USE OF PHOTOS TAKEN AT ACCIDENT AND EMERGENCY SCENES
Thanks for another interesting post Michael. As a paramedic of a few years experience, I and a colleague (no longer with us unfortunately) were maybe ahead of our time. We purchased the old polaroid camera and took shots of motor vehicle crashes, patients suffering severe injuries prior to and after treatment and medical emergencies such as asthmatic patients etc. Grab the polaroid print, a wave in the air for a minute or so and out it came!!
I am not sure of legal thought, but certainly from a professional and patient care perspective, those images were only ever given to hospital staff to give them a realistic idea of how the patient was prior to and after our treatment.
I still take pictures of cases, however, my professional ethics will never allow me to release them publicly. No matter the dollar value, the prestige etc. All images no matter the case are where possible are de-identified, and alway I ask the patient for permission to use the images for training purposes, which is simply all I am looking and asking for.
So my message I guess, is how professional are you? When would you overstep the line? And how important is your professional integrity? I know my answers!
Thanks again for thought provoking posts Michael.
Taking photos, particularly in an ambulance, is quite different to taking photos of a rescue scene from the street. In the ambulance the patient has an expectation of privacy and the paramedic/patient relationship would give rise to an expectation of confidentiality and privacy. Taking pictures in the best interest of the patient and as part of the medical record is much like any other record- a print out from the ECG etc. Using the pictures for other purposes could certainly be ‘restrained’ by the patient so it is indeed essential that you ask permission both to take and use the pictures in those circumstances.
Good morning Michael.
I (always) read with interest your comments & opinions regarding all matters & this one particularly struck a cord.
As a Paramedic with some 12 years experience (ACT & Vic) & a former Professional Ski Patroller Director, I have often been involved in evidence collection activities & investigations.
This is particularly relevant when attending traumatic scenes as an on-road Paramedic.
I have often used photographic evidence to assist in “hand-over” details when involved in triage at hospital.
As is often quoted “a picture is worth a thousand words”, showing a hospital registrar a photo of an accident scene which displays the ‘Mechanism & expected Pattern of Injury’, accompanied by an explanation will always result in better comprehension of the incident & understanding of the trauma.
I have never given any thought as to whether or not these photos could be construed as “evidence” but I can assure you that Paramedics from around Australia are taking photos of accident scenes & inflicted injuries & have done so for many years.
Thanks again for your entertaining & informative posts.
A.J. Simon .BHSc.
This may be of interest – from the USA – “California Medic Sued For Posting Photos of Patient Online With Insensitive Hashtags” see http://www.firelawblog.com/2016/11/14/california-medic-sued-for-posting-photos-of-patient-online-with-insensitive-hashtags/