Today’s correspondent says:

I recall you doing an article some time ago about tv reality shows based around paramedics etc. I commented recently (about 6 weeks ago) on a promo socials post by SA Ambulance for a show ‘Paramedics’. I expressed the dichotomy of PR and insight to the profession but it being unethical in terms of consent.

SA Ambulance Service responded to me online and their response was typical and interesting all the same. There was a small amount of support to what I was saying and most public comments suggesting that it was all above board because consent was likely obtained before going to air.

Interestingly, a patient who was featured in the episode to which I had commented on she expressed being rather overwhelmed by the ambulance crew and film crews.

A link to the online conversation was provided- https://www.facebook.com/share/p/cnWN7HZW1yaC9ybW/?

Indeed I did do an earlier post – see How are reality ambulance shows legal? (Updated) (October 9, 2018).  I stand by my position there.  I have no doubt that consent is obtained prior to the footage going out, but I fail to see how real, informed consent can be obtained to film during any incident and particularly any incident where time is of the essence.  Let me deal with the issue in detail.

An initial assumption

My initial assumption, that I hope is uncontroversial, is that we accept that interaction with our health professional is the ultimate example of where we expect confidentiality.  The codes of conduct for all the health professions stress the obligation on health professionals to protect patient confidentiality and there is a common law duty of confidence that arises in relationships where professional confidence is expected.   The combined Code of Conduct that applies to paramedics says at [3.3]

Consent

Consent needs to be obtained in at least, two stages. First consent to film the interaction and second, consent to use the material.  I’m not concerned with the second stage. On the Facebook commentary a person who was filmed confirmed nothing could be used without consent and she was very satisfied with the film company’s approach. All well and good.

My concern is obtaining the footage about someone who doesn’t consent to its ultimate use, or who is unable to consent.  The Facebook commentary says ‘people who are filmed would have been asked if they are ok with being filmed. It would all be above board’ and ‘from when they were with AV it was a quick informal consent asked by the TM on arrival then the crew came in with the camera crew and producers, later on in the journey a formal consent was signed and discussed with the patient…’.

But is that ‘quick consent’ real consent? The code of conduct requires ‘informed consent before disclosing information’ (and even having a clinical conversation in front of a film crew is disclosing information about the patient to the camera operator).  The person is having a medical crisis – it may not be life threatening but it is a sufficient crisis that someone has rang 000 for an ambulance.  We can, I think safely, infer that the caller’s main concern is the patient’s health and well-being. What they want is the assistance of health care professionals.  If those professionals turn up with a camera crew and ask, ‘can we film?’ there is a fundamental power imbalance. The patient wants the assistance of the paramedics – members of Australia’s most trusted profession – many will say ‘whatever’ because they want the care.   Where is the time to ask about the television production company’s privacy policy, what’s going to happen with the recorded material, who will have access to it etc?

As for patients in a life-threatening condition they don’t have the time or in many cases the capacity to give or refuse consent.  The person responsible can generally give consent to health care (see Consent to Medical Treatment and Palliative Care Act 1995 (SA) S 14B) but we’re not talking about the delivery of health care, we’re talking about recording the delivery of health care for the benefit of the production company, so that Act cannot be applicable to that decision.   A person’s enduring attorney may be able to give that consent, but they must exercise their powers ‘as attorney with reasonable diligence to protect the interests of the donor’ (Powers of Attorney and Agency Act 1984 (SA) s 7 (emphasis added)).  Allowing a TV crew to film the delivery of the health care is not being done to advance the patient’s interests and one could argue that there is a duty on the attorney to refuse consent to protect the patient’s privacy interests.  As for other family members at the scene, I am unaware of any legal authority that would allow them to give effective permission.

(As an aside I recognise that the filming may advance a patient interest. To again quote the Facebook discussion, a person who was the subject of one of these shows said, ‘A positive to the filming was that we as the family of the injured were able to get a clearer understanding of what happened to help with the recovery process.’  And if a patient alleges negligence or other improper conduct by the treating health care professional the video may be useful evidence one way or the other.  But I feel confident saying that the motivation behind the production of these programs is not to advance the patient’s interests, it is to advance the interests of the ambulance service, the production company and the TV station that will broadcast the show.)

If I am right then there is a serious issue to be argued that any consent obtained at the scene, is ineffective.  Not a problem if the person is happy to be part of the show but what of the person who does not want their footage used?

I think that person could point to the Code of Conduct and argue that by bringing the film crew in and being actively involved in the recording the paramedic has not put the patient first (Code of Conduct Principle 1) and has not delivered ‘Respectful and culturally safe practice for all’ (Principle 3).

Surveillance devices

There is also the issue of cameras mounted in the ambulance (or in other shows, on the wall of an emergency department treating area).  I do not know if these are recording all the time or if they are turned on and off, and if so by whom.  Let us assume they are on all the time because if they are not they would miss good footage. Even the case that doesn’t look like it will be of interest to the TV audience but may become so because of something said or done in the ambulance eg the patient goes ‘downhill’ and there’s good footage of the paramedic identifying that and taking action to deal with what has become an emergency.   

The Surveillance Devices Act 2016 (SA) s 4 says:

… a person must not knowingly install, use or cause to be used, or maintain, a listening device—

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

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

A similar provision applies to optical surveillance devices (ie cameras) (s 5). The conversations take place between the paramedics and the patient. The TV production crew are not parties to the conversation but are recording those private conversations.

There is an exception for recording ‘in the public interest’ (s 6).  It is trite to say that what the public is interested in is different to what is in the public interest. Recording interactions, particularly one’s that are not consented to or which cannot be consented to, for potential use in a TV production, is not in the public interest.

A person can record a private conversation if ‘the use of the device is reasonably necessary for the protection of the lawful interests of that person’ but these recording are not the protection of the lawful interests of either the paramedics involved or the TV production company.

Further the Act makes it an offence to ‘use, communicate or publish information or material derived from the use (whether by that person or another person) of a surveillance device’ (s 12).  One might of course argue that if it’s not used, there’s no problem. But if the material is recorded and then shared with members of the production crew eg to decide if there’s material that they want to use than that information is being communicated to those people involved in the production and perhaps editing decision.  If there’s a meeting between the ambulance service staff and the production staff where they review cases to see what might be of interest that itself would be sharing the information and breaching the patient’s confidentiality – and this long before a decision is made to actually broadcast the material.

When it comes to body worn cameras, there has had to be significant legislative change to allow police and others to wear them – see

• Body cameras for Victorian paramedics (December 19, 2016);
• Body cameras for Victorian paramedics No. 2 (November 25, 2017); and
• Body cameras for NSWAS – implications for others? (December 6, 2019).

On some of these shows the paramedics appear to be wearing body worn cameras. It is not clear if they are issued by the service for its own purposes or provided by the production company for getting footage for the show; or whether they are provided by the ambulance service, but the footage is shared by the ambulance service. Either way there has had to be significant law reform to allow their use both by paramedics and police but those reforms do not extend to capturing footage for broadcast.

Again, if the patient’s happy to be involved, no problem. But if they’re not?

Privacy principles

The Australian Privacy Principles are set out in the Privacy Act 1988 (Cth).  Privacy principle 6 says:

If an APP entity holds personal information about an individual that was collected for a particular purpose (the primary purpose), the entity must not use or disclose the information for another purpose (the secondary purpose) …

The Commonwealth Act applies in the SA health care context by operation of the Health Practitioner Regulation National Law (SA) s 213.  Where a paramedic asks a patient about their condition or history, they are collecting that information for primary purpose of providing health care to the patient. Recording that information for the benefit of the TV producers is a secondary purpose.  The use for a secondary purpose is permitted if ‘he individual has consented to the use or disclosure of the information’ (Principle 6.1(a)) but as I have argued above, the idea that any consent obtained at the scene is a real consent is at least doubtful.   And if the person was recorded when they could not consent but is then approached to ask if they would consent to the use of the information then one can infer the information has already been used for the secondary purpose of making an assessment about the value of the story, and that is already a breach.

A work health and safety issue?

Another consideration is the impact on the paramedics workload. An article recently came across my desk: Malone DF, Sims A, Irwin C, Wishart D, MacQuarrie A, Bell A, Stainer MJ. Lights, Sirens, and Load: Anticipatory emergency medical treatment planning causes cognitive load during emergency response driving among paramedicine students. Accid Anal Prev. 2024 Jun 2;204:107646. doi: 10.1016/j.aap.2024.107646. Epub ahead of print. PMID: 38830295.

This article discusses how ‘high cognitive load negatively affects driving performance, increasing the risk of accidents, particularly for inexperienced drivers’. Their study suggests ‘that contemplating cases and treatment plans may impact the safety of novice paramedics driving ambulances for emergency response’. Adding the further cognitive load of being filmed and then dealing with the film crwe on the scene must surly add to the stressors already facing paramedics with a risk when driving and, potentially, a risk in the delivery of care.  

So how do they continue?

Shows like this have been around for many years – with access to hospitals and ambulances, so if I’m right, how do they keep going?

There are a few possible answers to this question:

1. I’m wrong, and there is legal justification and authorisation for the whole process from start to finish and I just don’t know what the legal justification is or I’ve made erroneous assumptions about the process; or
2. As I like to say, the law is not ‘self-executing’.  Just because there is a breach of the law doesn’t mean anyone is going to do anything about it. It is a shock to realise that law is a self-help tool. It’s there but an aggrieved person has to do something about it, to make the complaint to AHPRA or the Privacy Commissioner or the police or take their own action in court.  And that is complex, traumatic and if you’re going to take legal action, expensive.  And if you make a complaint to an agency, they have to prioritise it against the other issues they face and are no doubt under resourced to pursue. And it may not be considered the most urgent particularly if the service apologises and all footage is deleted; or
3. As said on Facebook, “… the production company responsible …are consummate and caring professionals who care deeply about the patients’ well-being during and after” and they have managed to keep the customers satisfied. And perhaps people who have objected to being filmed have been satisfied by assurances that the footage will all be deleted so that they don’t feel the need to take it further.

Conclusion

I understand why the ambulance, health services and TV stations like these shows. As SAAS says in the Facebook discussion:

The show is incredibly popular and shines a light on the incredibly tough job our heroes in green do, plus, it can really serve as an amazing education piece for road safety, cardiac events and much much more.

That doesn’t make it legal. If there’s a breach of the Surveillance Devices Act or the Privacy Act then there’s a breach no matter the positive outcome.

As for paramedics, doctors and nurses, personally I expect them to take steps to protect my privacy and the confidentiality of our interaction.  I think a paramedic who agrees to take part in the show is in clear breach of the Code of Conduct [3.3]. They should understand that the power imbalance and the patient’s need to obtain care means they are not in any position to consent to being filmed nor to give ‘informed’ consent to the sharing of information. By agreeing to invite a camera crew in, working in an ambulance with cameras installed or wearing bodyworn cameras to capture footage for possible use in a TV show then neither they, nor the ambulance service are providing ‘surroundings to enable private and confidential consultations and discussions…’

To reiterate I’m not concerned with the person who is happy to be part of the show who consents to sharing the information with the world. I’m concerned with the process of sharing the information with the film crews and the producers who have to decide what they want to use when the person could not consent or was unable to give informed consent and who objects to the fact that they were recorded even if that footage is never broadcast.  I expect that one day (and that day may be the day that an ambulance crew turns up at my door with a TV crew) there will be a complaint to AHPRA.

POSTSCRIPT

After writing this post I was sent the Ambulance Victoria Paramedics Television Series Consent Protocol (Procedure PRO/SCE/003). You can read it here.

Filming and consent

In terms of gaining consent the first step, under the heading ‘Filming and consent’ is:

On arrival at a filmed case, treating paramedics with chest cams fixed to their person or in the company of a camera operator, must alert patients of filming. This might include words to the following effect:

‘Hi. I am XXX and this is XXX from Ambulance Victoria and we are here to help. We also have XXX who is filming a documentary about our work. You’re our first priority so we just want to look after you first and we’ll talk about the filming later.”

OR

‘We are doing some filming for Ambulance Victoria, we are not live so no need to worry. You are our priority so let’s take care of you first and we will talk about the filming later.”

This does not obtain consent. There is no request here.  He patient is to be told that filming is happening not to ask if that is OK.  There is no discussion of what is to happen if the patient is unable to consent or is critically unwell.

What should happen is that in the absence of the camera crew the patient should be asked if they consent to the filming. They should be told that they have the right to say ‘no’ and that their decision won’t affect the treatment they receive. Ideally they will also be told that the filming is for the production of a TV show (it’s not really filming ‘for Ambulance Victoria’, it’s filming for ‘WTFN Entertainment, they are the ones who are going to use the footage for their purpose of making a TV show) and that they will be given the opportunity to review any footage before it is broadcast and withdraw consent at any time.

Remember the code of conduct says that paramedics have to have ‘informed consent’ before disclosing information and further they are to ‘provide surroundings to enable private and confidential consultations and discussions’ and none of that happens if the camera is already rolling. Of course that sort of consent could not reasonably be obtained when the patient is in actual need of care so that could mean that the short form described is ok, or a better option, is not to have the cameras present.

Broadcast consent

The next section is ‘Broadcast consent’.  It says:

1. When seeking broadcast consent at the scene of the incident, the following issues must be considered:

a) Patients cannot provide consent if they are substance affected, mentally unwell or require carer, guardian or Power of Attorney consent unless otherwise agreed by the AV Representative and WTFN Representative taking into account all the particular circumstances of each Patient and each case. Capacity of a patient will be determined by the clinical judgement of a paramedic.

b) Treating paramedics should not deal with consent issues – unless it is otherwise agreed by AV and WTFN for the treating paramedic to subsequently approach a Patient after the incident – and are always solely focused on treating the patient.

The parties acknowledge that while these principles apply at all times, each case must be assessed on its particular circumstances and agree to consult with each other as appropriate.

2. If the consent is not obtained on scene and WTFN wishes to obtain consent, WTFN will advise the AV Representative (as notified to WTFN in accordance with the Production Agreement) within five (5) working days of the case date, or as soon as reasonably practical. WTFN agree to consult with AV prior to contacting the patient or a family member of a patient too unwell to provide consent at scene.

The consent to broadcast could not be obtained at the scene. “Patients cannot provide consent if they are substance affected, mentally unwell or require carer, guardian or Power of Attorney consent” or are distressed, unconscious, critically unwell, don’t speak English, vulnerable or not fully informed.  And if they cannot give consent, it is not up to “the AV representative and WTFN representative” to agree that they can give consent.

The next paragraph is of particular concern. ‘If consent is not obtained at the scene and WTFN wishes to obtain consent’ then it must follow that the WTFN producers are aware of the case, are aware of the patient’s circumstances and their medical condition. And this information has been given to them without the patient’s consent and for no clinically indicated reason.  The patient’s medical information, including details of their care and treatment, are recorded by AV for the purpose of providing medical care.  Giving it to WTFN is for an unrelated secondary purpose contrary to the Privacy Act. Without patient consent there can be no justification for giving this information to WTFN producers for them to decide if they want to follow up on that story.

An analogy

Although this is not research, I am reminded of the need to obtain consent for research that involves human subjects.  If the patient was being asked to be part of a research project, eg if the filming was to observe paramedics in practice for the purpose of analysing professional conduct in order to write a paper on paramedic practice and patient interaction then consent in accordance with the National Statement on Ethical Conduct in Human Research 2023 would be required. 

To get permission to undertake human research a researcher needs to justify the research by showing that the benefits to the profession, the community and/or the patient outweighs any risk to the patient participant. The National Statement says (at [2.1.1])

A judgment that research is ethically acceptable requires:

(a) identifying the risks and burdens potentially arising from the research, if any, and which participants or others might be at risk of harm or experience discomfort or burden;

(b) assessing the likelihood and severity or magnitude of the risks;

(c) considering and describing actions or strategies that could effectively minimise, mitigate and/or manage each risk, including modifications to the research design;

(d) identifying the potential benefits and to whom any benefits are likely to accrue;

(e) weighing the risks and burdens against the potential benefits and determining that any risks and burdens are justified by the potential benefits.

There is clearly a risk of harm. The National Statement says this about harm:

While no list of harms can be exhaustive, one helpful classification identifies the following types of potential harms in or from research:

• physical harm: including injury, illness, pain or death;

• psychological harm: including feelings of worthlessness, distress, guilt, anger, fear or anxiety related, for example, to disclosure of sensitive information, an experience of re-traumatisation, or learning about a genetic possibility of developing an untreatable disease;

• devaluation of personal worth: including being humiliated, manipulated or in other ways treated disrespectfully or unjustly;

• cultural harm: including misunderstanding, misrepresenting or misappropriating cultural beliefs, customs or practices;

• social harm: including damage to social networks or relationships with others, discrimination in access to benefits, services, employment or insurance, social stigmatisation, and unauthorised disclosure of personal information;

• economic harm: including the imposition of direct or indirect costs on participants;

• legal harm: including discovery and prosecution of criminal conduct.

Most of these could happen to a patient filmed for TV. They could suffer psychological harm if they feel their trust has been betrayed, if they relive the experience on seeing the footage, if they are embarrassed, ostracised or criticised over how they appear in the ‘final cut’, or if they are upset that others such as the camera crew or production team got to see them at their most vulnerable or if the footage shows or implies they have been involved in criminal conduct.  And that’s true whether it makes it to TV or not, the mere fact that the camera crew are there, or the production crew look at the raw footage would and could be enough.

There may be benefits of making these TV shows. Clearly there’s a benefit for the production company and there may be some benefit for the ambulance service. There is little or no potential benefit for the patients either individually or as a collective group.

With respect to participation in research, the National Statement goes onto say:

Participation that is voluntary and based on sufficient information requires an adequate understanding of the purpose, methods, demands, risks and potential benefits of the research.

AV is not requiring any of that information to be given to their patient’s at least not ‘at the scene’.

Paragraph [2.2.9] says:

No person should be subject to coercion or pressure in deciding whether to participate.  Even where there is no overt coercion or pressure, consent might reflect deference to the researcher’s perceived position of power, or to someone else’s wishes. Here as always, a person should be included as a participant only if his or her consent is voluntary.

There may not be direct coercion but the power imbalance between the paramedics and the patient’s is obvious. The patient wants, perhaps critically needs, paramedic assistance.  They are presented with filming as a given (‘we are filming’ not ‘do you mind if we film?’) in circumstances where there is no opportunity to assure them that they can say no and will still receive care.  There is very little opportunity for a person to refuse consent and no consideration of what to do if the person is unable to give or refuse consent.

The National Statement provides specific guidance for research involving people in dependent or unequal relationships including ‘health care professionals and their patients or clients’ (National Statement [4.3]).  The Statement says (at [4.4])

Significant ethical issues are raised by research conducted in the following settings:

• neonatal intensive care;

• terminal care;

• emergency care;

• intensive care; and

• the care of unconscious people

Paramedics are involved in all these areas of care and may be bringing TV crews into those environments.

There are other provisions in the National Statement on dealing with ‘Women who are pregnant and the human fetus’ (chapter 4.1); ‘Children and Young People’ (Chapter 4.2); ‘People with cognitive impairment, an intellectual disability, or a mental illness’ (Chapter 4.5); ‘People who may be involved in illegal activities’ (Chapter 4.6) and ‘Aboriginal and Torres Strait Islander Peoples’ (Chapter 4.7).   Paramedics deal with people in all these classes and cannot know, when they set out with a TV crew who they will see that shift.  Details of how to sensitively deal with such cases are not set out in the AV protocol.

Filming for the TV show is not research so the National Statement is not applicable but it is interesting to observe that if the filming was for research, and the researcher was going to publish a paper in a scientific journal that in no way identifies the patient’s or the paramedics it would be subject to scrutiny by at least one Human Research Ethics Committee with obligations on the researcher to confidentially store data, and report back to the Committee on the development of the research. It would not be published if the journal was not satisfied that all these ethical issues had been addressed.  There is no way a researcher would be allowed to proceed if the extent of the patient protection, and the ethical justification for the project, was the same as set out in the AV protocol even though the risk to the patient would be much less and the benefit to the community much more.

Conclusion

Partaking in these shows can cause harm to patients. If a researcher wanted to ‘ride along’ and film patient/paramedic interactions to produce a research outcome designed to improve AV procedures or understand patient experiences with paramedicine, that would be published with complete anonymity, they would be subject to much greater regulation and control to ensure that the benefit outweighed the risk than a TV crew planning to make a show for international broadcast.  My analogy with human research should make ambulance services and paramedics stop and think that there are real ethical issues raised by these programs. 

The protocol by AV does not, in my view, adequately address these complex issues.   It does not seriously deal with the patient’s capacity to consent to filming or why people, who are not involved in the clinical care of a patient, should be brought into the patient’s home by trusted health care professionals or how a vulnerable person can give effective consent.  Individual paramedics should review the Code of Conduct and ask are they really meeting the principles set out there when they agree to facilitate the production of these shows.

To return to my question of how do they continue? My guess is that people involved aren’t sufficiently annoyed to take the matter further.   If those that say “I don’t want to be involved” are respected and any footage is destroyed, why would they bother taking it further.  Unlike me, most people haven’t served on Human Research Ethics Committees and spent a career thinking about ambulance law and ethics. And the Paramedicine Board and the Privacy Commissioner aren’t going to do anything unless someone complains.  The fact that no-one has complained, does not make the process right, or legal.

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.