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.