Today’s correspondent comes from Tasmania. The question and issues can be linked to the earlier post – Dash cams and NSW SES (February 25, 2018) – but this time it’s not a dash cam doing the recording but a defibrillator!

My correspondent says:

I work for Ambulance Tasmania and they have just decided to go with the Zoll monitor defibrillator.

I just found out (by accident) there is a feature on there that records audio as soon as the monitor is switched on. Many staff are not aware of this and we are certainly not asking patients if they consent to having the interaction with us recorded. The Paramedic doing the Zoll training told me it isn’t a problem because management are only going to use the recordings to audit cardiac arrest cases.

I don’t care when or how they say they will use the recording, in my mind, the issue is, it exists and it is currently being obtained without staff or patient consent.

I’m very uncomfortable with this and do not want to be recording patients without their consent. There is also no policy associated with this so I don’t see anything stopping police demanding recordings every time we go into homes of people they are investigating. Then there is the issue that if we ask a patient if they consent to being recorded and they decline, we literally cannot turn the monitor on.

I feel outraged that I will be recorded without my consent and also that I am effectively being asked to record patients without their consent.

Any advice?

I’m not sure which model Ambulance Tasmania have decided to purchase, but the Administrator’s Guide for the ‘Fully Automatic AED Plus’ says:

If installed and configured, the Fully Automatic AED Plus contains an audio recording option that records and stores 20 minutes of continuous audio and clinical event data during a rescue. (The unit records and stores at least 7 hours of clinical event data if the audio recording option is disabled.) The recorded audio data is synchronized to the clinical event data.

It’s not clear to me why one wants that data. When handing over a patient who’s been in cardiac arrest I can understand why the medical team would want any recording of the patient’s heart rhythm and the impact of the defibrillator but for clinical purposes, who is ever going to want to listen to 20 minutes of audio?

Putting that aside, the device is recording information so let us consider the law.

The patient

Listening Devices Act 1991 (Tas)

In Tasmania, a listening device is ‘any instrument, apparatus, equipment or device capable of being used to record or listen to a private conversation simultaneously with its taking place’ (Listening Devices Act 1991 (Tas) s 3)).  That the AED can record ‘20 minutes of continuous audio’ would mean that it is a ‘listening device’.  A private conversation (s 3) is:

… any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only –

(a) by themselves; or

(b) by themselves and by some other person who has the consent, express or implied, of all those persons to do so;

It is unlawful (s 5) to use:

… a listening device –

(a) to record or listen to a private conversation to which the person is not a party; or

(b) to record a private conversation to which the person is a party.

It is not an offence if the recording of the private conversation by means of a listening device was unintentional (s 5(2)(d)).

The penalty for unlawfully recording or listening to a private conversation via a listening device is, for an individual a fine of up to 40 penalty units or imprisonment for 2 years or both, and for a corporation the maximum penalty is a fine of 500 penalty units (s 12). The current value of a penalty unit in Tasmania is $159 (Department of Justice, Value of Indexed Amounts in Legislation: Penalty Units and Other Penalties Act 1987).  So the maximum fine for an individual is 40*$159=$6360. For a corporation it’s 500*$159=$79500.

One can imagine that during a cardiac arrest the conversation is not ‘private’ within the meaning of the Act. If the patient is in cardiac arrest they are not taking part in a conversation.  The paramedics are probably talking to each other about the situation at hand and what they are doing and going to do.  They are not discussing their private lives and whilst they may prefer not to be overhead one couldn’t infer that the conversation was private as defined by s 3, particularly if they are in a public place.  (To return to my earlier post, Dash cams and NSW SES (February 25, 2018), one might assume also that there are not private conversations in an SES truck, but there may be. People returning from a job may well be having a conversation that they intend is to be heard only by the people in the truck, so it is very likely that a dash cam could, unintentionally, record a private conversation).

Presumably, however, a cardiac monitor may be put on people who are not in cardiac arrest and they may say something. One can imagine a patient in an ambulance saying something private to the paramedic, whether it’s an admission of something, a reflection on their life, who knows. And this may be recorded by the defibrillator.  The intention may be to record clinically relevant data so this recording may be unintentional so it may not be an offence under s 5, but that is not the end of the matter.

Section 10 says:

(1)  A person who has been a party to a private conversation and has used, or caused to be used, a listening device to record the conversation (whether in contravention of section 5 or not), shall not subsequently communicate or publish to any other person any record of the conversation made, directly or indirectly, by the use of the device.

(2)  Subsection (1) does not apply where the communication or publication –

(a) is made to another party to the private conversation or with the consent, express or implied, of all of the principal parties to the conversation; or

(b) is made in the course of legal proceedings; or

(c) is not more than is reasonably necessary for the protection of the lawful interests of the person making the communication or publication; or

(d) is made to a person who has, or is, on reasonable grounds, by the person making the communication or publication, believed to have, such an interest in the private conversation as to make the communication or publication reasonable under the circumstances in which it is made; or

(e) is made by a person who used the listening device to record the private conversation pursuant to a warrant granted under Part 4 or pursuant to an authority granted by or under the Telecommunications (Interception) Act 1979 of the Commonwealth or any other law of the Commonwealth.

Let us assume that, facing a near death crisis, a patient makes an admission to the paramedic that she has regretted remaining in her marriage for the last 10 years.  That is communicated in the ambulance with the obvious expectation that it is private.  She would not want her partner to know this.  So, what happens with the data?  From what I gather from the Zoll brochure’s it could be (perhaps should or even must be) downloaded and form part of the patient’s record.

Tasmania Ambulance and the paramedic has ‘used, or caused to be used, a listening device to record the conversation’. Let us assume that it is not an offence contrary to s 5 but even so neither Ambulance Tasmania nor the paramedic may ‘subsequently communicate or publish to any other person any record of the conversation’ in which case the audio file can’t be given to the hospital team as part of the patient record. Most of the exceptions under s 10(2), above, can’t apply. Section 10(2)(c) doesn’t apply because it’s not made ‘for the protection of the lawful interests’ of Ambulance Tasmania or the paramedic.

Section 10(2)(d) might apply if the treating team have ‘such an interest in the private conversation as to make the communication or publication reasonable under the circumstances in which it is made’ but the reality is that they have no interest in that communication. They may want to know what signs and symptoms the patient had and what treatment they received but her admissions as to the state of her marriage are irrelevant to them.

And at some point, the partner as a person responsible for her care, or as the beneficiary of her estate, or as an appointed guardian or in some other capacity may well get access to that medical record and be given details, and hear a conversation, that was clearly not intended to be heard by the partner.  It would seem that handing over the recording where it involves a ‘private’ conversation between the patient and the paramedic that is not clinically relevant would be an offence under the Listening Devices Act 1991 (Tas).

Personal Information Protection Act 2004 (Tas)

Basic personal information means ‘the name, residential address, postal address, date of birth and gender of an individual’.  Health information is:

(a) personal information or opinion about –

(i) the physical, mental or psychological health at any time of an individual; or

(ii) a disability at any time of an individual; or

(iii) an individual’s expressed wishes about the future provision of health services to him or her; or

(iv) a health service provided, or to be provided, to an individual; or

(b) other personal information collected to provide, or in providing, a health service; or

(c) other personal information about an individual collected in connection with the donation, or intended donation, by the individual of his or her body parts, organs or body substances; or

(d) genetic information about an individual that is or may be predictive of the health at any time of the individual or any of his or her descendants –

other than prescribed information, a prescribed class of information or information contained in a prescribed class of documents;

The information contained in the ambulance clinical record will be ‘personal information … about … a health service provided … to an individual’.   That would include the details of the patient’s cardiac condition as well as the discussion between those providing the health service, that is the paramedic(s) and others at the scene.  It would appear then that the audio recording would form part of the patient’s health information.

The Personal information protection principles (s 16 and Schedule 1) say

Collection

  1. A personal information custodian must not collect personal information unless the information is necessary for one or more of its functions or activities.
  2. A personal information custodian must collect personal information only by lawful means…

With respect to details of a personal conversation (as in my example above) there is no reason to record that sort of conversation for the purposes of Ambulance Tasmania or patient care.  And as noted the use of the listening device may be illegal.

With respect to use and disclosure the Personal information protection principles go onto say:

(1) A personal information custodian must not use or disclose personal information about an individual for a purpose other than the purpose for which it was collected unless –

(a) both of the following apply:

(i) that purpose is related to the primary purpose and, if the personal information is sensitive information, that information is directly related to the primary purpose;

(ii) the individual would reasonably expect the personal information custodian to use or disclose the information for that purpose; or

Further disclosure can be justified where it ‘is necessary to lessen or prevent – (i) a serious threat to an individual’s life, health, safety or welfare…’ (cl 2(1)(d)).

Ambulance services collect and record personal information about the patient including their name and address, a relevant history, details of treatment administered etc all the time. Collecting that information is part of the health care delivery and handing it on to the hospital medical team is directly related to the purpose for which it was obtained and recorded and a person would, I think, reasonably expect a paramedic to hand that data over to the hospital so in that sense making the material available, particularly if there is no private conversation recorded, would not be an issue.

One of the issues in the discussion about SES and dash cams was the need to maintain the data. Equally in Tasmania ‘A personal information custodian must take reasonable steps to protect the personal information it holds from misuse, loss, unauthorised access, modification or disclosure.’  Just as Ambulance Tasmania will need a way to secure its patient records it will also need to ensure that it can store the recordings made by the defibrillator.  And they will need to maintain that data for as long as they maintain other patient records.

The paramedics

The paramedics may indeed be engaged in a private conversation in the presence of the patient.  Whether they are reflecting on their own conduct, or the patient, or the ambulance service itself, they may well be having a conversation in the expectation that no-one else will hear it.  (And I note that may not be professional if one should always assume the patient can hear, but regardless it may well happen).

In that case their own private conversation has been recorded by a listening device.  It is not an offence to record a private conversation if ‘all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used’.  If the paramedics are aware that their conversation could be, or is being, recorded then one might infer that they consented (ie that they have given their ‘implied consent’). But my correspondent says that they aren’t being told that the defibrillators are capable of audio recording.  As my correspondent says:

I … found out (by accident) there is a feature on there that records audio as soon as the monitor is switched on. Many staff are not aware of this …

In that case neither they nor their patients can give consent nor could their consent be implied.

Tasmania does not appear to have an equivalent to the Workplace Surveillance Act 2005 (NSW).

The police

It’s true that the police could seek access to the recording in the same way they could seek access to a clinical record where that is relevant to their investigation (eg search warrant or subpoena). There are limits on the use that can be made of a recording that has been made contrary to the Listening Devices Act 1991 (Tas) ss 13-15 but even if the material can’t be used in evidence, it doesn’t mean it can’t inform police and be an important part of their inquiry, and that recorded may be harmful to the interests of those recorded.

Conclusion

The use of audio recording features on a defibrillator is problematic. It raises issues on how the recording is to be stored and protected.

More importantly the device is a ‘listening device’ and the use of a listening device to record a private conversation is unlawful. I would suggest the discussion that is limited to the clinical procedures is not a private conversation for the purposes of the Listening Devices Act but if the paramedics and/or the patient are unaware that they are being recorded they may well have a private conversation, that is a conversation that they do not intend, and would not want, anyone else to hear.  To record that without consent is an offence. Equally it is an offence to pass that information on which may be problematic when handing the patient onto hospital or other services.

One solution may be to make sure every paramedic is aware of the audio recording feature and put a sign on the device, and in the ambulance saying, in effect ‘Warning: Your conversation may be recorded’.