A nurse from WA has a:
… question relating to the public taking photographs of medical staff in a patient’s hospital room. I know in most circumstances a person can take photos of anyone regardless of consent except in certain situations ie customs processing hall where photography is prohibited by law. As a nurse can I ask someone not to photograph me whilst I’m treating a patient, and even if the patient consents to the photo but I don’t.
That’s an interesting question and the answer is not obvious. Landowners can make it a condition of entry that cameras are restricted and that is indeed what happens at theatres and concert venues. The back of your ticket will have terms and conditions and will probably tell you that photography and filming is prohibited. Further they mean it and at least in some venues security will take action if you are caught using your camera.
I can’t imagine however that this is a term upon which people are given permission to enter hospitals. There is no ‘ticket’ system and public hospitals are pretty much open to anyone.
As a nurse you can of course ask someone not to take your photo but what could you do if they do take their photo. You wouldn’t have the right to seize their camera see (Lifesavers as law enforcers? (July 6, 2014)) and it’s not like the old days where if you did get the camera you could remove the film.
If someone takes a photo and posts it on social media you may have some rights to ask that it be taken down and may have a cause of action if you can prove some damage.
If a person takes the photo and keeps it in the family photo album – here’s our family member in hospital and their lovely nurse – I can’t see that you could do anything about that.
If the photo was used because it demonstrated some professionally inappropriate behaviour, then no-one is going to be concerned that the photo was taken without your permission. The issue then will be what does the photo show and what should be done about that?
There’s no actionable breach of privacy because a person is not an entity bound by the privacy laws. They are not collecting personal data for a particular purpose and are therefore obliged to keep that data and use it for that purpose. They are just a person with a camera, and there is no ‘right’ to privacy.
The question was ‘As a nurse can I ask someone not to photograph me whilst I’m treating a patient….?’ The literal answer to that question is ‘of course you can ask’. The more difficult question is ‘and what can I do if they refuse to honour my request?’
If their presence and photographing is interfering with patient care I would suggest contacting a more senior nurse eg the nurse unit manager or security. But if they take the photo and put the camera away I can’t see any obvious legal remedy unless and until they chose to publish it.
If any other lawyers who read this blog and know more about privacy or media law and have a different view, I’d love to hear it.
A lot of hospitals have no camera / no social media policies but it’s not often communicated to patients and visitors but staff that are aware of it.
I understand that most hospitals in South Australia have signs all over prohibiting filming and voice recording in the hospital.
But any thoughts on how they enforce that? To return to the question a nurse could ask them to stop but there’s not much more that could be done.
Hospitals in SA have authorised officers (usually security guards) who have powers under by-laws (generally) to issue infringement notices for breaches. Parking and traffic is most common along with wilful damage and destruction of hospital property.
I do wonder whether an infringement notice could be issued for failing to comply with a direction or similar with regard to the use of cameras etc, (this would of course need to be clarified against the by-laws or legislation being enforced and the extent of ‘actual’ powers of authorised officers (as opposed to bluff/quasi powers).
Further, media outlets aren’t permitted to film on/in hospitals without permission, how does this align or compare to the scenario above.?? (Media would be escorted off the premises)…
Media outlets in a hospital are very different to a patient or a person visiting a patient with a camera. Hospitals would have some obligation to protect their patient’s privacy that would be under threat from media and the presence of media may well impede the hospital’s operations. That would be true of anyone wondering the hospital corridor taking photos, but that’s not the same as a person taking a photo when visiting their friend or family member. As for the by-laws there could presumably be one made (eg under s 42(1)(o)) but a hospital would have to made that by law. And I can’t really see security escorting a visitor off the grounds because they took a photo and even if they did that would allow them to take possession of the camera or the photo. My response remains the same, the nurse can ask the person not to take a photo but can’t do much if they do, unless and until they publish it.
It is a public space so no privacy is expected. I spotted one of the signs at Modbury hospital and complained to Health SA. They claimed the signs do not exist as it is not a rule so I sent them a photo of the no photography sign in their hospital.
I disagree. just because it’s a public hospital does not make it a public space in the same way such a park is. It is an enclosed space and the occupier has the right to exclude people. And there is absolutely an expectation of privacy in a hospital. No photography signs could well be creating an implied term on the licence to enter discussed in the post.
When I challenged the health department, they told me they had no such policy in force in any of their facilities and there is no state law enforcing this. Some random employee must have organised the signs without approval.
https://www.legislation.sa.gov.au/LZ/C/A/HEALTH%20CARE%20ACT%202008/CURRENT/2008.3.AUTH.PDF – Division 7, S42 outlines the By-laws and removal of persons, including expiation fees for public sites within SA – not certain how relevant it is to this scenario but possibly a mechanism..???
Some other possible causes of action below. It all depends …
There is also currently no tort of invasion of privacy in Australia, but in ABC v Lenah Game Meats (2001) the High Court did not exclude the possibility that a tort of unjustified invasion of privacy may be established in the future. The High Court also left open the question as to whether Australian law recognises a tort of harassment or stalking. ABC v Lenah has been considered in cases decided by state courts. Different conclusions have been reached. Some courts come to the conclusion that law of Australia has not developed to the point of recognising an action for breach of privacy, while others have held that an invasion of privacy was an actionable wrong which gives rise to a right to recover damages according to the ordinary principles governing damages in tort. Other courts have looked to the UK development of a duty of confidence in relation to private information as the basis for legal remedies for an invasion of privacy.
There are also criminal offences set out in state and territory statutes regarding behaviour that is a gross violation of privacy or the taking photographs and video or audio recordings result in the creation of material that offends community standards. The offences include: the use of a camera or digital device (such as the camera function of a mobile phone) for indecent purposes; or to make an image of a child engaged in a private act for prurient purposes; or to make indecent images of a child under the age of 16; or engage in the practice of ‘upskirting’; and there are offences related to committing indecent or offensive acts in a public place. The question as to whether photographs and video or audio recordings result in the creation of material that offends community standards is a vexed one. The state or territory criminal statute may require the image to assessed in order to determine whether it offends the standards of morality, decency and propriety generally accepted by reasonable adults.
Moreover, another possible cause of action may be found in the law of defamation that deals with injury to someone’s reputation. The test of whether the publication of a photograph is defamatory is: does the publication lower the public’s estimation of the person portrayed, expose the person to hatred, contempt or ridicule, or cause him or her to be shunned or avoided. The defamatory nature of a publication of a photograph may result from the caption (which may not be the responsibility of the photographer); or the context in which the photograph appears; or the subject matter and how viewers could interpret the photograph.
That’s a very detailed comment, Michael, thanks for that. I don’t see that ‘taking photographs of medical staff in a patient’s hospital room’ is likely to give rise to the criminal offences suggested in context – ie taking a photo of the nurse performing nursing duties but certainly could do if it is taken for lewd purposes (“down blouse”; “up skirt” etc) but I didn’t infer that is what we are being asked about but it is a fair point.
As for defamation that requires publication but as noted ‘If a person takes the photo and keeps it in the family photo album – here’s our family member in hospital and their lovely nurse…’ that’s not going to be defamatory.
And hard to see that given the nurse is working with the patient that this would be an invasion of the nurses privacy but I can see it could be harassment if they insisted on taking photos after being asked not to.
But as you say “It all depends …”
Hi, I want to extend this questions to; A patients family leaving a recording device to monitor the patient’s interactions with a medical team. For example new technology such as a google hub that will start recording when a person enters the room and family can remotely watch and record the room. For the purpose of the scenario, assume the family are the patients decision maker. Does the hospital have any authority, other than their own campus policies, to remove the monitoring device?
This may be a breach of the Listening devices law (of course with various names in each state) if a conversation is being recorded without the knowledge and consent of those involved, in which case police could become involved. But fundamentally any immediate action is going to depend on internal policies.