This question is very disturbing.  I’m told that after:

… receiving critical medical treatment by [an event health service] … team at an event earlier this year. I was taken to a curtained off medical bay in a designated area of the venue.

2 photos were taken while I was unconscious with my dress hitched up to fully expose my underwear. I had ECG electrodes attached and an IV line in my arm. It is clear from the photographs that I am in a critical and very compromised position. The photographs were taken by a member of the public, a third party.

I have serious concerns about this behaviour and believe that it violates privacy laws around photography in medical centres. Photographs should obviously not be taken in these situations, but does it violate any specific legislation?

Could it be classified as ‘Upskirting’? This is based on my reading of section 41B of the Summary Offences Amendment (Upskirting) Bill 2007 (Vic)?

Summary Offences Act 1966 (Vic)

A Bill is a draft law. Once passed the provisions became part of the Summary Offences Act 1966 (Vic).  The Amendment Bill introduced Division 4A into Part 1 of the Act. These provisions deal with ‘Observation of Genital or Anal Region’. Section 41A says:

A person must not, with the aid of a device, intentionally observe another person’s genital or anal region in circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be observed.

Penalty:     3 months imprisonment.

Section 40 defines “genital or anal region” to mean ‘the person’s genital or anal region whether bare or covered by underwear’.  “Device” means a device:

… of any kind capable of being used to observe a person’s genital or anal region including—

        (a)     a mirror; and

        (b)     a tool when used to make an aperture; and

        (c)     a ladder—

but does not include spectacles, contact lenses or a similar device when used by a person with impaired sight to overcome that impairment;

A device could include a camera so a person who uses a camera to take a photo up the skirt of a person standing on a tram would commit this offence as would a person who drilled a hole in a wall to be able to see into someone’s bedroom, bathroom or changeroom in order to observe someone’s ‘anal or genital area’.

Crimes Act 1958 (Vic)

The Crimes Act 1958 (Vic) s 53R(1) creates a more relevant and specific offence. That section says:

A person (A) commits an offence if—

(a)       A intentionally produces an image depicting another person (B); and

(b)       the image is an intimate image; and

(c)       A knows that the image is, or probably is, an intimate image; and

(d)       the production of the intimate image is contrary to community standards of acceptable conduct.

An intimate image includes (s 53O) ‘an image depicting— … (c)    the genital or anal region of a person (whether bare or covered by underwear)’.

The maximum penalty for this offence is 3 years imprisonment. The Act gives examples of conduct that may, or may not constitute an offence. One example is:

A doctor taking a photo of an unconscious patient, which depicts the patient’s genital region, during an operation to assist the doctor to perform a medical procedure may not be an offence against this section because of subsection (1)(d).

Subsection 1(d) is the reference to ‘community standards of acceptable conduct’. Section 53U says:

(1)       Whether the production or distribution of an intimate image is contrary to community standards of acceptable conduct depends on the circumstances.

(2)       For the purposes of subsection (1), the circumstances include—

(a)       the nature and content of the intimate image;

(b)       the circumstances in which the intimate image is produced or distributed;

(c)       the age, intellectual capacity, vulnerability or other relevant circumstances of a person depicted in the intimate image;

(d)     the degree to which the production or distribution of the intimate image affects the privacy of a person depicted in the intimate image.

We don’t know the context, but we’re told the image is of a patient with their ‘dress hitched up to fully expose [their] underwear’.  That is an image of the person’s ‘genital or anal region’ and therefore an intimate image.  If they patient was observed by strangers who realised they could see into or access the treatment area then I for one have no doubt that taking the photo ‘is contrary to community standards of acceptable conduct’.  If it was taken by someone with permission of the treatment team, then the context would be relevant – if it was to form part of the medical record or for training then that may be acceptable as suggested by the example given in the Act.

TV crews

What’s interesting about this scenario is to consider what would have happened if paramedics arrived wearing body cameras or accompanied by a TV crew (see Revisiting reality ambulance shows (June 9, 2024)).  If they had captured the footage, they may argue that they did not ‘intentionally observe another person’s genital or anal region’ but the camera operator may have made sure to get a shot that showed the person’s state of clothing not knowing what may or may not be used in the future.  They may not commit the offence under s 53R as the protocols in place regarding the production and use of the footage may mean that is not against acceptable community standards, but they could be guilty of the lesser offence in the Summary Offences Act.  And if they are then it doesn’t matter if the footage is never used or deleted, the offence is committed when the photo is taken.  And if it’s wrong for a stranger to come in and take the photo, how is it any less wrong for a camera crew accompanying the ambulance crew?

Conclusion

One cannot give definitive advice particularly without seeing the photo and understanding the context of how it came to be taken but on what I’ve been told here, if I was the patient and upset about the photo (both its existence and that it was taken in the first place) I’d certainly report it to Victoria police regarding possible offences contrary to the Summary Offences Act 1966 (Vic) s 41A and/or the Crimes Act 1958 (Vic) s 53R.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.