Today’s question is:

… about the use of CCTV in areas of an Emergency Department where a patient may assume are private.

I’m working in … Queensland. I’ve recently been made aware that there is a surveillance camera in the Fast Track area positioned in such a way as to show the entire room including all four beds. If the curtains are drawn most of the view to private areas is blocked, however not all curtains are able to be drawn completely. I believe there is a sign on the front door of the facility regarding CCTV but the scope of possible footage in this particular room surprises me. Views of common areas within the Fast Track area and corridor could likely still be achieved without full view of patient beds. The camera is certainly visible in the corner, but I am not sure patients would be aware of the scope of footage.

What is the legality of positioning cameras in areas which patients may have an assumption of privacy?

That’s a complex issue.

The Code of Conduct for Nurses (Nurses and Midwifery Board, 1 March 2018) says (at [3.5]):

Nurses have ethical and legal obligations to protect the privacy of people… To protect privacy and confidentiality, nurses must: …

b.         provide surroundings to enable private and confidential consultations and discussions, particularly when working with multiple people at the same time, or in a shared space.

The AHPRA shared code of conduct (29 June 2022) that applies to the other registered health professionals, including paramedics, says:

You have ethical and legal obligations to protect the privacy of patients…

To protect privacy and confidentiality, good practice includes that you:…

b.         provide surroundings to enable private and confidential consultations and discussions, particularly when working with multiple people at the same time, or in a shared space

The code of conduct published by the Medical Board (Good Medical Practice: a code of conduct for doctors in Australia (1 October 2020)) is not that explicit, it says that a good doctor-patient partnership involves a doctor ‘Protecting patients’ privacy and right to confidentiality, unless release of information is required or permitted by law’ ([4.2.3]).

The first thing to consider is that these clauses must be contextualised. A GP working in their private rooms can conduct private consultations, but in an emergency room, or public ward, where all that divides the patients is a curtain, meeting the requirements set out in any of these codes will be difficult so the practitioner must do the best they can in the circumstances.

Second, particularly in an emergency room, consultations will not be between doctor or nurse and patient but between the team. So, a doctor may be asking the patient questions in the presence of other members of the treating team, but no-one would suggest that this was a breach of the Codes of Conduct.  It’s not a breach to share medical information – on a need-to-know basis – with others in the team or to have a discussion with the person whilst other members of the team are doing their work.

Finally, details of the consultation are then recorded in the health care record. These entries may be written by the doctor, a nurse or even a clerk whose job it is to keep those records. And the records may be accessed by those providing care but also for hospital administrative purposes (for a related discussion see First aid patient records – who and what are they for? (January 31, 2015)).

The critical issue is that everyone who can access the record is bound by the same duty of confidentiality and can only access the record on a needs-to-know basis.  And the duty of confidentiality also belongs to the health care institution (Privacy Act 1988 (Cth) and state and territory privacy legislation) so the hospital has to ensure that the records are properly maintained and staff understand their obligations.

Let us then consider the issue of the CCTV.  The recording forms part of the hospital’s record. One can see why a hospital would want that record. It could form relevant evidence if something happens, or something is omitted. Whether that ‘something’ is violence in the hospital or a claim that a treating practitioner did, or failed to do something that they should have.   Did the doctor assault the patient? Did they perform a procedure that the patient alleges they did not?

If it is part of the hospital record it would, we anticipate, be subject to the same sort of controls.  Only accessed by those who need to know, so I would hope it is not being monitored by security staff whilst procedures are taking place.

The use of a CCTV may be subject to the Surveillance Devices Act 2004 (Cth) and equivalent legislation in the states and territories.  A surveillance device includes a listening device that can overhear or record a conversation. It’s not clear whether the CCTV in question records audio but I think we can infer that it can ‘record visually or observe an activity’ so it is an optical surveillance device (s 6).

The Surveillance Devices Act 2007 (NSW) s 8 says:

A person must not knowingly install, use or maintain an optical surveillance device on or within premises … to record visually or observe the carrying on of an activity … without the express or implied consent of the owner or occupier of the premises …

Clearly there is no offence when the owner of the premises – the hospital – installs the devices.

It follows that there would appear to be few legal issues provided that the recording is protected like all hospital patient records.

I should note that I take a very different view where the cameras are recorded by television stations to record entertainment such as ’24 hours in emergency’ or the various ‘fly on the wall’ paramedic shows – see How are reality ambulance shows legal? (Updated) (October 9, 2018).

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.