Today’s correspondent has:

Another question about audio recording on cardiac monitors that might be of interest for your blog.

St John Ambulance Western Australia are introducing a new cardiac monitor/defibrillator which, amongst other new features, has the ability to record audio at a scene. St John have indicated to staff that this will be enabled on the new monitors to record audio at cardiac arrests. I note your previous post about audio recording at Ambulance Tasmania here – https://emergencylaw.wordpress.com/2018/02/26/audio-recording-by-ambulance-tasmania/ – and note that a lot of this doesn’t apply since the intention is to only audio record at a cardiac arrest, where patients are unlikely to be having a private conversation (what we have been told is that it will only record when “defibrillation mode” is activated, which is ambiguous because this could potentially include an unstable or peri-arrest patient who one might put defib pads on who are still conscious who could then still share private thoughts – however for the purposes of this question I’m happy to take it on face value that only cardiac arrests will be recorded).

The intention behind audio recording cardiac arrests is about continual improvement and finding human factors that are potentially causing delays in treatment, time without chest compressions etc so these can then be improved, as one of the comments on the previous post pointed out, this is a practice encouraged by the Resuscitation Academy. While the intention is noble, there are some issues that have come up in discussion amongst my colleagues around the use of what is effectively a recording device. While patients themselves may not be recorded, there may be situations where bystanders, family members etc at a resuscitation may be recorded, who may object to signage on the monitor saying “conversations may be recorded” etc. As the recording at cardiac arrest cannot be turned off, a paramedic could be placed in an impossible situation between turning off the monitor to stop the recording meaning they cannot analyse a rhythm or defibrillate a patient, or continue to manage the patient appropriately and continue recording against the bystander’s wishes. To their part, St John have simply said that any recording of bystanders would be unintentional therefore is excepted under the act; and accordingly there are no consent issues and they don’t see any conflicts arising (I can supply you with the “FAQ” document that has been produced if that would be helpful).

I note that while not the intent of the recordings, conversations with or between family members may be of a personal nature, from what their wishes are for their loved one, through to things they wished they had told them but never did.

So, my questions are:

  1. Would recording conversations with or between bystanders without their knowledge or consent breach the relevant legislation?
  2. If so, could the paramedics operating the “recording device” (the cardiac monitor/defibrillator) be liable under the relevant legislation (I believe the Surveillance Devices Act)?
  3. If it is an offence under the act, does vicarious liability apply?
  4. If a family member refuses consent to be recorded but does not wish to leave the area, is there any resolution in this circumstance other than “too bad”? On the assumption that a reasonable paramedic isn’t going to turn off the defibrillator.

It is indeed correct that I have written on this topic before – Audio recording by Ambulance Tasmania (February 26, 2018).  My correspondent says that much of that answer won’t apply in WA ‘since the intention is to only audio record at a cardiac arrest, where patients are unlikely to be having a private conversation’.  My correspondent goes on to say, however ‘we have been told … that it will only record when “defibrillation mode” is activated, which is ambiguous because this could potentially include an unstable or peri-arrest patient who one might put defib pads on who are still conscious who could then still share private thoughts …’ so it seems to me much of that answer re Tasmania will apply in WA, but we can work through the legislation and the scenario in any event.

In WA the relevant Act is the Surveillance Devices Act 1998 (WA).  That Act says (s 5):

… a person shall not install, use, or maintain, or cause to be installed, used, or maintained, a  listening  device —

(a)          to record, monitor, or listen to a private conversation to which that person is not a party; or

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

Penalty:

(a)          for an individual: $5 000 or imprisonment for 12 months, or both;

(b)          for a body corporate: $50 000.

The critical questions are therefore, what is a listening device and what is a private conversation?

A ‘listening device’ (s 3) is:

… any instrument, apparatus, equipment, or other device capable of being used to record, monitor or listen to a private conversation or words spoken to or by any person in private conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear;

A ‘private conversation’ (s 3) is:

… any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties to the conversation desires it to be listened to only by themselves, but does not include a conversation carried on in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard.

It is no offence to use a device to record a private conversation where the use of that device results in the ‘unintentional hearing of a private conversation’ (s 5(2)(e)). Nor is it an offence when everyone consents to the recording (s 5(3)(c )) or where one party consents and the use of the device is ‘reasonably necessary for the protection of the lawful interests of that principal party’ (s 5(3)(d)).

The use of a defibrillator that records audio is intended to improve response to cardiac arrest.  Any recording of a private conversation between bystanders (accepting for the moment that the patient cannot talk as they are in cardiac arrest) would be ‘unintentional’ (even if it is foreseeable that is nto the intention) so no offence is committed (s 5(2)(e)).

If ‘bystanders, family members etc at a resuscitation’ are having a private conversation that can be overheard and recorded by the device then it can also be overheard by the paramedics who are, presumably, close to the device.  In those circumstances they would be having a conversation where they ‘ought reasonably to expect that the conversation may be overheard’ (by the paramedics) in which case it is not a private conversation and no offence is committed.

If they are trying to have a private conversation with the treating paramedic or paramedics that is probably inappropriate at a cardiac arrest and they will be told so.   In any event it would be appropriate to say ‘this conversation is being recorded’ (or point to the notice on the defibrillator that says words to the effect of ‘This machine may be recording your conversation’).

The paramedic is not faced ‘an impossible situation between turning off the monitor to stop the recording meaning they cannot analyse a rhythm or defibrillate a patient, or continue to manage the patient appropriately and continue recording against the bystander’s wishes.’  The paramedic’s duty is to the patient.  If it has been pointed out that the conversation si being recorded and the bystander continues to talk either it is no longer a private conversation as they know ‘the conversation may be overheard’ and/or they have by implication consented to the recording (s 5(3)(c)).

I can then turn to my correspondent’s questions:

  1. Would recording conversations with or between bystanders without their knowledge or consent breach the relevant legislation?
    No, if that were to record any private conversation it would be unintentional (s 5(2)(e)).
  2. If so, could the paramedics operating the “recording device” (the cardiac monitor/defibrillator) be liable under the relevant legislation (I believe the Surveillance Devices Act)?
    No need to answer that as the answer to question 1 is ‘no’; but if there was an offence yes a paramedic could be liable as the offence is committed by anyone who installs or maintains the device (ie St John (WA)) as well as anyone who uses the device (ie the paramedic) but as noted my answer to question 1 is ‘no’ so that is a moot point as I believe no offence is committed in the circumstances described.
  3. If it is an offence under the act, does vicarious liability apply?
    No, vicarious liability is a concept in tort law. It says an employer is liable to pay damages for the negligence of the employee.  It does not extend to the criminal law.  An employer does not go to gaol for the employee.  Again that is a moot point as I believe no offence is committed in the circumstances described.
  4. If a family member refuses consent to be recorded but does not wish to leave the area, is there any resolution in this circumstance other than “too bad”? On the assumption that a reasonable paramedic isn’t going to turn off the defibrillator.
    No, the answer is ‘too bad’. If people want to have a conversation where the paramedics (and therefore the device) can overhear what they say, that is not a ‘private conversation’.    If they want to have a private conversation with the paramedic and they know the device is recording then they by implication consent to the recording.  Even if they don’t know the device is recording, the recording of that conversation is still ‘unintentional’; recording that conversation is not the intention or purpose behind the use of the defibrillator to record audio at a cardiac arrest.