I received this question from a NSW Paramedic:

In my local area, we have a frequent caller who is known to secretly record paramedics’ interactions with themselves. This patient will call multiple times in a shift and receive a high category response. They will be hostile and non-engaging with paramedics who attend and often refuse transport to hospital, only to call back very soon afterwards. It is not uncommon for them to put in vexatious complaints to cause further stress to paramedics involved.

The secret recordings greatly distress my colleagues as they are concerned that these interactions will be placed on social media and framed in a way to discredit them actions and reputation.

Is there any legal standing that would allow paramedics to refuse the use of recording devices or stop the recordings from being placed on a social media platform? 

The patient’s status as a ‘frequent caller’ and his or her behaviour in refusing transport etc are all irrelevant to the answer.  The answer lies in the Surveillance Devices Act 2007 (NSW) and for related posts see: 

and, in particular, 

The critical section is s 7(1) which says:

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

…

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

A ‘private conversation’ is (s 4):

… words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only–

(a) by themselves, or

(b) by themselves and by some other person who has the consent, express or implied, of all of those persons to do so,

but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else.

I think consultation between a person and their health care practitioners, in this case the paramedics, is the epitome of a ‘private conversation’.  So, prima facie, it is an offence for the person to record the conversation with the paramedics save that there are defences. In particular s 7(3) says that s 7(1)(b) does not apply if:

(a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or

(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation–

(i) is reasonably necessary for the protection of the lawful interests of that principal party, or

(ii) is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.

I infer that the paramedics in question do not consent to the recording so 7(3)(a) does not apply. 

Conversations with health practitioners can be confusing and hard to remember so it would probably be accepted that any recording of a health consultation is reasonable to allow the person to go back over what was said to make sure they understand the conversation and s 7(3)(b)(i) would apply.  Equally if the patient believes, rightly or wrongly, that the Ambulance Service via its employees is not providing a proper service then recording the transaction would also fall within s 7(3)(b)(i). 

In short I don’t think there is anything you can do to stop them recording the conversation.  A paramedic could ask a person not to record the intervention but there would be limits on their ability to refuse to interact with the patient if they insisted.  For example you could not withhold lifesaving treatment where a patient refused to turn off their recorder – and see the discussion in my earlier post Patient recording of paramedic interaction (March 28, 2019)).

If the conversation was published on social media, then the question would arise if that was the patient’s intention at the time of the recording.  If it was 7(3) does not provide a defence (s 7(3)(ii)).  It would be an interesting discussion if the patient argued that at the time of the recording, they had no intention of communicating the details of the conversation to a third party but later decided to publish it on social media.  That may be a matter for the Court of Criminal Appeal to grapple with sometime in the future.  Let us, however, accept for the sake of the argument that publication on social media would deny the defence under s 7(3) regardless of whether the intention to publish was formed at the time of the recording or some time after.

If s 7(3) does not apply, then the recording of the private conversation is an offence carrying a maximum penalty of a fine of 100 penalty units (a penalty unit is $110 (Crimes (Sentencing Procedure) Act 1999 (NSW) s 17) so a fine of 100 penalty units is 100 x $110 = $11,000) or 5 years imprisonment or both. 

If s 7(3) does not apply, then it is an offence to publish the conversation. Section 11(1) says:

A person must not publish, or communicate to any person, a private conversation … that has come to the person’s knowledge as a direct or indirect result of the use of a listening device …in contravention of a provision of this Part.

In that context the ‘person’ would be the social media platform (eg Meta, or X). They only commit the offence the recording was obtained ‘in contravention of a provision of this Part’.  That again begs the question of whether s 7(3)(b)(ii) applies if the intention to publish is formed after the recording is made rather than at the time of the recording.  

Assuming s 7(3)(b)(ii) applies even if the intent to publish is formed after the conversation is recorded, then it creates an offence by both the patient and the social media publisher. But a criminal statute does not give some ‘right’ in the paramedics to stop the publication. If it is published, they could complain to police who would decide whether to act or not.  The problem with all criminal law is that it is reactive, that is it applies after the offence has been committed. It doesn’t give a right or any power to stop the publication on social media. 

A person could complain to the social media platform and ask them to take down the recording, but media reports would suggest that is not an easy process.

A person may have a right to an action in defamation but if the published recording is their own words, it would be hard to see how that is defamatory.  In any event only people with a very large amount of money can afford to sue in defamation and it is only worth suing someone with a very large amount of money to be able to recover one’s costs, let alone damages. 

Conclusion

My answers to the questions are:

Is there any legal standing that would allow paramedics to:

  • refuse the use of recording devices?

Paramedics could and should indicate that they do not consent to being recorded but their consent is not required where s 7(3)(b)(i) applies. They could not refuse to treat a person where that person refuses to turn the recording off. 

  • stop the recordings from being placed on a social media platform?

You could not actually stop the recordings being uploaded but if they are uploaded that may constitute an offence, noting the discussion above that it is not clear that an offence is committed if the person only formed the intention to publish the conversation after it was recorded.  A person (the paramedic in this context) may have the necessary standing to ask a social media platform to remove the recording. 

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.