Today’s correspondent says

Recently it’s come to my attention a “Level 1” or a trainee ambulance officer in NSW has started an Instagram and published photos likely breaching patient privacy.

The employer is aware.

AHPRA cannot do anything as NSW ambulance continue to hire non graduate employees and are not “paramedics”.

I understand photos of patients may be taken for legitimate purposes (with consent) from time to time and become a part of their “health information” and thus there is a responsibility for privacy.

My question is:

Could the patients involved commence civil litigation against NSW ambulance for failing to adequately ensure their privacy was maintained?

I’ve been provided with copies of some of the photos that have been posted as well as the person’s Instagram ‘handle’.  To avoid further republication of the images, I’m not going to put any of them here or identify the Instagram account. Because I’ve seen the account, I’m not just commenting on what I’ve been told. As a result, I expect this post may be stronger and more opinionated than the tone I usually aim for.  I remind myself that I am not here to give legal advice, but I trust that student involved may find out about this post and consider what I’m about to say if they want their career to extend beyond their student days.

Jurisdiction

First some jurisdictional issues.  AHPRA is the Australian Health Practitioner Regulation Agency. AHPRA is in effect the secretariat to the various professional boards. They manage the administration and assist the Boards to perform their functions, but it is in fact the Boards (subject to what I’m about to say about NSW) that make decisions and exercise powers. A complaint to AHPRA is really a complaint to the Board and it’s up to the Board to take action.

NSW is however a co-regulatory jurisdiction. This means that the disciplinary proceedings in NSW are not managed by the Board. In NSW those issues are dealt with by the Paramedicine Council and the Health Care Complaints Commission (see Health Practitioner Regulation National Law (NSW) (‘the National Law’) Part 5A ‘New South Wales Councils’ and Part 8 ‘Health, Performance and Conduct’ and Health Care Complaints Act 1993 (NSW)).

Student registration

The National Law provides for student registration (Part 7, Division 7; see also https://www.paramedicineboard.gov.au/Qualifications/Students-and-graduates.aspx). The Diploma of Paramedical Science issued by the Ambulance Service of New South Wales is an accepted qualification for registration as a paramedic (National Law s 312). It is also an ‘approved program of study’ for the purposes of student registration (s 313).

One can infer that this trainee paramedic is registered as a student. Complaints can be made (s 144A) that a student has:

(a) … either in this jurisdiction or elsewhere, been charged with an offence, or has been convicted of or made the subject of a criminal finding for an offence, that is punishable by 12 months imprisonment or more.

(b) … an impairment.

(c) … has contravened a condition of the student’s registration or an undertaking given by the student to a National Board.

It is not known whether there are any conditions on the student’s registration or whether he or she has given an undertaking to the Board though it is probably unlikely in which case it would appear that the conduct the subject of today’s discussion does not meet any of those definitions so it’s correct that a complaint could not be made under the National Law.

Students as non-registered health practitioners

The National Law is, relevantly, about paramedics. But NSW is concerned about all health services provided to citizens in this state. A complaint may be made under the Health Care Complaints Act about a ‘health practitioner’ (s 7). For the purposes of that Act a ‘health practitioner is a ‘person who provides a health service (whether or not the person is registered under the Health Practitioner Regulation National Law)’ (s 4, definition of ‘health practitioner’).  A health service includes ‘ambulance services’ (s 4, definition of ‘health service’). A student registered under the National Law is not a registered health practitioner (National Law s 5, definition of ‘registered health practitioner’) so they must be a ‘non-registered health practitioner’.

A complaint can be made about the practitioner’s ‘professional conduct’ including any alleged breach of the Code of Conduct for Non-Registered Health Practitioners (see Revised Code of Conduct for non-registered health practitioners in NSW (September 23, 2022)).  The Code (Public Health Regulation 2022 (NSW) Sch 3) says, amongst other things,

  • ‘A health practitioner must provide health services in a safe and ethical way’ which includes practising ‘in accordance with accepted professional standards’ (cl 1); and
  • A health practitioner must … ensure the health information of the practitioner’s clients is kept confidential and the privacy of the practitioner’s clients is protected, including by complying with relevant legislation (cl 14).

Ethics and accepted professional standards

It is widely accepted that there are ‘four principles of bioethics’ (see for example The Four Principles of Biomedical Ethics), they are

  1. Beneficence (do good)
  2. Non-maleficence (do no harm)
  3. Justice and
  4. Respect or autonomy.

Taking photos of patients and putting them on Instagram is not doing good for the patient. It brings the patient no benefit at all.

Taking photos of patients and putting them on Instagram, along with witty or judgmental comments about how their injuries occurred may harm the patient. It may harm the patient if they don’t want that information made public. It may harm the patient if it is wrong. A comment for example that the driver was ‘drunk’ may be defamatory.

Sharing these images has nothing to do with ‘justice’ the fair allocation of resources. It may be ‘unjust’ in that patients of this student get their photos on Instagram and others do not so that is not justice for this person’s patients.

It is hard to know what sort of consent has been obtained either to take the photos or to publish them. Even if the patient agrees to let a paramedic student take a photo do they know that they intend to publish it for the world?  I suspect not and would query whether any consent in those circumstances could be effective (see How are reality ambulance shows legal? (Updated) (October 9, 2018)).

Aidan Baron and Ruth Townsend have written on ‘Live tweeting by ambulance services: a growing concern’ ((2017) Vol 9 No 7 Journal of Paramedic Practice 282-286).  They have created an ‘Intention-to-Tweet Decision Matrix’ which is reproduced in my post Posting on social media by police – and others (February 2, 2019). This could apply equally to Instagram.  The images being posted are exploitative in that they promote the student’s own status, talk about specific incidents and aim to inform using specific examples.  There is no justification for the publication of these images other than to promote the student’s standing and to titillate their followers.

Even if not strictly bound by the Paramedic Board’s Code of Conduct and Social media policy these may be relevant evidence of professional standards. The Board does give guidelines on social media -see https://www.paramedicineboard.gov.au/Professional-standards/Codes-guidelines-and-policies/Social-media-guidance.aspx#.  The guide says:

Inappropriate use of social media can result in harm to patients and the profession, particularly given the changing nature of privacy and the capacity for material to be posted by others. Harm may include breaches of confidentiality, defamation of colleagues or employers, violation of practitioner–patient boundaries or an unintended exposure of personal information to the public, employers, consumers and others.

Take care when sharing information, including comments or photos, that you do not inadvertently disclose patient information. Check what is in the background of a photo before sharing it and make sure that information you share does not unintentionally disclose personal information about individuals (because someone might use available information to work out who you are talking about). Although individual pieces of information may not breach confidentiality, the sum of published information online could be enough to identify a patient or someone close to them.

Photos that show people’s faces, or the registration number of their cars are all likely to lead to identification.  Even information about the type of injury and the date may mean people who know the injured person can identify them.

Without going through the Code of Conduct in detail one can also argue that posting images on social media is inconsistent with the obligations to ‘Put Patient’s first’ and to ‘display a standard of professional behaviour that warrants the trust and respect of the community.’  Imagine if a doctor or nurse in the emergency room were taking and posting photos of patients. That would not inspire patient trust, and neither will the idea that a paramedic will take a photo that then appears on social media.

Clause 3.3 relates to Confidentiality and Privacy. It says:

You have ethical and legal obligations to protect the privacy of patients. Patients have a right to expect that you will hold information about them in confidence, unless the release of information is required or authorised by law, or is required to facilitate emergency care.

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

(g)       do not transmit, share, reproduce or post any person’s information or images, even if the person is not directly named or identified, without first getting written and informed consent. See also the Social media guidance on Ahpra’s website

Given that some of the photos were from rescue scenes, this particular student may also want to consider the State Rescue Policy (July 2021) that says

1.102 The recording of images and/or video at a rescue incident can result in considerable undue stress to those involved as well as their friends and relatives. In addition, the taking and use of such images and/or video may be in breach of the Privacy and Personal Information Protection Act 1998 or the Work Health and Safety Act 2011…

1.115 The SRB [State Rescue Board] considers that it is not acceptable to publicly display any images and/or video of dead or injured people or animals…

1.120 Any organisation that has images or video of dead, injured or other victims from a rescue incident must handle the images or video as ‘personal information’ as defined in section 4 of the Privacy and Personal Information Act 1998, whether bound by that Act or not.

I think that makes the case that taking photos of ‘jobs ive attended to as a trainee paramedic’ and posting them on Instagram breaches every relevant ethical principle, and all accepted professional standards relating to the practice of health care generally and paramedicine in particular.

Complying with relevant legislation

In this case the relevant legislation is the Health Records and Information Privacy Act 2002 (NSW).  That Act defines ‘personal information’ (s 5) as:

“personal information” means information or an opinion … about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

Section 6 defines ‘health information’ as:

(a) personal information that is information or an opinion about–

(i)        the physical or mental health or a disability (at any time) of an individual, or …

(iii)      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 …

The photographs could only be taken whilst the paramedic was providing a health service. It is information about the physical injuries of the individual and opinions about their behaviour or what caused their injuries. The participants given the information in the photos could be identified. 

If you put a name on a photo that person can be identified even by a person that does not know them; but identification is not that simple. Putting up images of the accidents or some diagnostic scans, vehicles etc would allow people who do know the patients to identify them.  Someone may be able to say: ‘that must be the person I know who said they were involved in an accident’. Some may simply recognise the people or the situation.  The identity of the individual’s involved ‘is apparent or can reasonably be ascertained from the information’.

Posting these photos has to be a breach of this Act.

Arguably, because the paramedic is from NSW Ambulance (and some of the photos make that clear) it is NSW Ambulance collecting this information. That would be a breach of the health privacy principles as the collection of the information (ie the photo) is not reasonably related to the care being provided, they ‘intrude to an unreasonable extent on the personal affairs of the individual to whom the information relates’ and I imagine the person being photographed is not being told why that is being taken or what use will be made of it (Health Privacy Principles, Health Records and Information Privacy Act 2002 (NSW) Sch 1).  

A complaint could be made to the Privacy Commissioner who could refer it to the Health Care Complaints Commission (s 65).

The consequences

Section 68 of the Health Records and Information Privacy Act says:

A public sector official must not, otherwise than in connection with the lawful exercise of his or her official functions, intentionally disclose or use any health information about an individual to which the official has or had access in the exercise of his or her official functions.

A public sector official includes a person employed in the NSW Health Service which includes employees of NSW Ambulance (Health Services Act 1997 (NSW)).  The only way this person has had access to the people and the scans they have photographed is in the course of the ‘exercise of his or her official functions’. The maximum penalty is a fine of 100 penalty units or 2 years imprisonment, or both.

The Act does not give a statutory right to compensation (s 71) but a person could sue if the requirements of various torts, eg defamation or breach of confidentiality were established.

If a complaint that the person has breached the code of conduct for non-registered health practitioners was upheld, the Health Care Complaints Commission could make an order (Health Care Complaints Act 1993 (NSW) s 41A) that:

(i) prohibits the health practitioner from providing health services or specified health services for the period specified in the order or permanently,

(ii) places such conditions as the Commission thinks appropriate on the provision of health services or specified health services by the health practitioner for the period specified in the order or permanently.

Even if no complaint has been made, the Paramedicine Council, may (National Law s 150) if it is satisfied that it is necessary:

…  for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest –

(a)        by order suspend a …  student’s registration; or …

(c)        by order impose on a student’s registration the conditions the Council considers appropriate.

I would imagine but have not explored that such action would also be a breach of relevant codes of conduct for NSW Health and NSW Ambulance employees so one would anticipate that this student’s employment is also at risk.

Other posts

I have written other posts on taking photographs by emergency workers, see for example:

In the post US legislation on taking photos at emergency scenes (August 24, 2012) I was asked to comment on US law and whether such legislation was required here. I said:

Do I think such legislation is needed here?  As the author of the article, David Givot, says “As for the new law in N.J., it makes terrific sense. If you don’t want such a law in your state, don’t give your legislature a reason to pass one.”

I’m not familiar of cases where emergency responders have taken photos and then distributed them online.  In the absence of any problem, a legislature is unlikely to see passing such a law as important, but if responders start taking and distributing these sorts of photos, then the need for such a law may become apparent.

The student may show that there is a need?

Conclusion

The trainee paramedic who has created an Instagram page where they are posting photos of ‘jobs I’ve attended to as a trainee paramedic’ is, I suggest, engaging in career limiting practices.   People in the photos are readily identifiable, the images are graphic and have attached inappropriate commentary.

The behaviour is unethical, possibly criminal, and poses a threat to the standing of the profession and NSW Ambulance. The conduct could be subject of complaints to the Health Care Complaints Commission, the Privacy Commissioner or the employer. The Health Care Complaints Commission and the Paramedicine Council could impose orders imposing conditions or terminating this person’s career.

Being a student is a learning experience and we acknowledge that students are not yet competent in all the skills. Hopefully someone will identify that this too is a learning experience and tell this young person to ‘grow up’, that being a paramedic is not a job for your or your friend’s entertainment but a professional calling with professional responsibility and that they should remove their Instagram page forthwith.  Failure to do so may not bode well for their future.

POSTSCRIPT, 7 November 2023

The instagram page appears to have been taken down or at least it is no longer publicly available.

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.