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Body Cameras in the Emergency Department
Body Cameras in the Emergency Department Proposal Decried From Several Corners
by WILLIAM B. MILLARD, PhD Special Contributor to Annals News & Perspective
thought experiment recently offered by a prominent official at the National Institutes of Health (NIH) about emergency physicians’ use of body cameras has stirred some impassioned debate and no small amount of criticism. Jeremy Brown, MD, director of NIH’s Office of Emergency Care Research, proposed in a recent Emergency Physicians Monthly op-ed1 that body cameras, as used in police departments to record and monitor encounters with civilians, might become part of health care providers’ standard equipment. The technology that has transformed much of the public realm into “the people’s panopticon”2 is still banned from emergency departments (EDs). The idea is at least provocative, and it has provoked leading emergency physicians to denounce it with vigor. Dr. Brown’s suggestion opens with, and is substantively based on, an analogy with the use of body cameras by police. Advocates of this practice contend that it increases accountability and civilized behavior, and Dr. Brown stressed its potential
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for reducing spurious malpractice claims, as well as violence. The article appears alongside 3 companion pieces, collectively labeled “Physician, Record Thyself,” that raise a number of practical considerations in the event body-mounted videography ever becomes a practice in US EDs. One involves quantitative matters, such as the vast scale of video material that would be generated, requiring storage, review, and security.3 Another examines the legal implications, noting that video recordings raise questions of privacy, consent, and control under the Health Insurance Portability and Accountability Act.4 A response by editor-in-chief Judith Tintinalli, MD, MS, although scrupulously avoiding advocating the practice, noted that video could clarify the varying and flawed perceptions of patients and physicians alike, potentially improving on real-time human attention but also forcing all parties “to be ready to have our own behaviors and communications on display,” with all the potential consequences such a condition implies.5 Dr. Tintinalli reported that when Dr. Brown sent in the op-ed article, “all of our editors at Emergency Physicians Monthly thought it was a very
stimulating idea, and it certainly has been. We’ve got a lot of comments on it.... [T]here are a lot of very good views about the difficulties and challenges of it. But in view of what we’re hearing now with just general violence, problems with the police, it seems a topic that’s certainly interesting enough to mention. Now, is it ready for prime time? Of course not, for a whole lot of reasons.... I hope it never happens. I think a hospital setting carries with it a sense of privacy.”
IN DEFENSE r. Brown is happy to discuss and defend the proposal, noting these are his own views and not those of the NIH. Recognizing he has aroused numerous objections, he distinguishes questions about ways to make body camera recording practical, compliant with the Health Insurance Portability and Accountability Act, and congruent with patients’ interests from broader questions about whether it changes the ED environment in unacceptable ways. “Technical questions will have technical solutions, or not,” he observed. “How will privacy be protected? There are some interactions that may not be appropriate for the recorder because of the possibility that this could end up in some kind of public domain.” “The philosophical question,” Dr. Brown said, is another matter. He found some aspects of it already moot. “I think that this is the world that we have moved into. Our cell phones
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record where we are going all the time, unless we take steps not to allow them to do that. Our EZPasses record.where our cars have been.... Some people find it frightening, and I understand that, and other people find that it’s actually very helpful and that these devices produce remarkable benefits. But those benefits do come at a price.” Although widespread video recording in airports, elevators, policecitizen encounters, and other settings has been useful in exposing theft and violence, the ED strikes Dr. Tintinalli as a qualitatively different, nonadversarial environment. “If you’re talking about the medical setting or the ED setting, certainly I don’t agree with video surveillance,” she said. “We’re supposed to be an area that is separate.. Even though it’s an ER, [with] a lot of people and a lot of doctors, it’s still based upon an individual physician-patient relationship. And it needs to stay that way and stay private.”
PREPOSTEROUS? he fundamental questions underlying ED video, say physicianbioethicists who have scrutinized the practice, run deeper than technical or organizational obstacles. “It sounds preposterous for a medical encounter to be videotaped,” said Joel M. Geiderman, MD, cochair of emergency medicine at Cedars-Sinai Medical Center in Los Angeles and chair of the American College of Emergency Physicians’ (ACEP’s) Ethics Committee. When the committee recently discussed the idea of ED videotaping, he reported, “there wasn’t one person who spoke up in favor of it.” Arguing that the “concept of the ED as theater” creates inherent pressures that would compromise privacy,
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confidentiality, consent, and other values that physicians and patients have long considered non-negotiable, he cited the unambiguous language of the College’s policy statement on recording devices in the ED: “ACEP believes that the use of recording devices, including cell phone cameras, in the emergency department for the purpose of capturing photographic, video, or audio media poses significant risks to the privacy and confidentiality of patients and staff. ACEP encourages emergency departments to adopt policies regulating the use of such devices.”6 Reversing this presumption and easing the constraints surrounding private images, he said, involves the “supposition that terrible things happen to both parties, and this would control doctors’ behavior toward patients...and patients’ behavior toward doctors. The assumption is that our relationship is so broken that it needs to be monitored by the camera. It’s not a true premise.” Dr. Geiderman has reviewed situations in which filming or videotaping of hospital patients sets commercial interests into conflict with medical ethics, offering regulatory guidelines in a Journal of the American Medical Association (JAMA) piece coauthored with Gregory L. Larkin, MD, MSPH, of Parkland Memorial.7 He has also faced pressure to admit reality television crews into his own ED, along with arguments that other institutions already participating in videotaping had normalized the practice. Rejecting both the everyone-elseis-doing-it position and a contention that retroactive consent procedures could absolve crews of privacy violations because their presence in a trauma suite already compromises the rights of people who are in no position to consider the pros and
cons dispassionately, Dr. Geiderman insisted that Cedars-Sinai place patients’ privacy first and kick the crews out.8 The ED should remain a private space, Dr. Geiderman contended, for ample reasons: the sensitive interactions between physicians and patients, the vulnerable states in which people enter the ED, the deterrent effect that the possibility of video surveillance might create for patients who need emergency care but have reasons to avoid exposure, and the chances that video material, once created and stored (even if kept off the networks by patients’ veto), could not be kept secure from hackers, leakers, and prurience peddlers.
INFORMED CONSENT xplicit informed consent, Dr. Geiderman pointed out, is essential to the relevant section of the American Medical Association’s Code of Ethics, Opinion 5.045, which adopts ideas and language that he and Dr. Larkin proposed in their 2002 JAMA article.9 Filming can serve legitimate public educational objectives, this provision recognizes, yet commercial filming cannot benefit the patient and must be subject to strict conditions, including the patient’s right to stop filming or withdraw consent at any time, including after the treatment (“up until a reasonable time period before broadcast for public viewing”), and the obtaining of consent by a disinterested third party, not the media team. Even when the recording is used for quality control or evidentiary purposes rather than commercial ends, Dr. Brown’s proposal to mount cameras on ED personnel could change the circumstances so that recording would be a default condition, not a carefully
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controlled, guideline-bound exception to normal procedure. “There’s no doubt in my mind that we would discourage some patients from coming to the emergency department at all,” Dr. Geiderman said, particularly patients whose cultures include strong taboos against bodily exposure to strangers. Dr. Brown pointed out that recording near EDs is not novel. “Almost every single department that I’ve worked in, over the 15 to 20 years of my professional career, had a recording device in the hallways, and near the nursing station, and the entrance and exits to the emergency department, so that patients were already being recorded in those public spaces—and it’s important to note those public spaces were very often...treatment spaces. “We know when spaces are overcrowded that treatment spaces are in the hallway, so you’re already, in these instances, recording the way that patients are being treated, nursing and doctor interactions, on those surveillance cameras. So for some patients it’s already being done.” Professional standards may evolve to regulate recording practices as they have done in other areas, he added.
“The example that many people would first think of [is] the pelvic exam or a rectal exam.... I see the bodycam as now one more chaperone we have to learn to deal with.” Kenneth Iserson, MD, emeritus professor of emergency medicine at the University of Arizona and another ACEP Ethics Committee member, has engaged in collegial discussion of the issue with Dr. Geiderman over the years, including pointcounterpoint exchanges in Annals, and has come around to embrace many of his colleague’s objections to videotaping. Having developed a general algorithm for ethical challenges that arise in emergency practice,10 including tests of impartiality, universalizability, and interpersonal justifiability, Dr. Iserson found that a body camera proposal cannot withstand any of them (Figure). “All three actually have to be in the affirmative,” he observed, “to use a technique...in an ethically appropriate path.” Impartiality, equivalent to the Golden Rule, holds that if a physician were in the patient’s place, the action must be acceptable. “Would you want every emergency physician to be basically videoing you?” he asks. “Not
Figure. Algorithm for ethical decisions in emergency medicine. Modified from Iserson KV. An approach to ethical problems in emergency medicine. In: Iserson KV, Sanders AB, Mathieu D, eds. Ethics in Emergency Medicine. 2nd ed. Tucson, AZ: Galen Press; 1995. Available at: http://www.galenpress.com. Accessed September 4, 2015. Volume 66, no. 4 : October 2015
necessarily, without your knowledge.” Universalizability requires a physician to be willing to have the action performed in all relevantly similar circumstances. Situations like those Dr. Geiderman recounted (real and proposed), in which celebrities enjoy privacy while hoi polloi are fair game for cameras, clearly make hash of this principle. The third test, interpersonal justifiability—which he abbreviates to “the stink test,” noting that “we oftentimes just shorten all our discussions down to the third one”—asks whether a physician can provide good reasons justifying the action to others (peers, superiors, the press, or the public). The stink test applies philosopher David Gauthier’s basic theory of consensus values11 to screen a proposed action for congruence with norms acceptable to all rational persons. A measure that dissolves the distinction between public and private information, undermining patients’ implicit trust in their physicians’ discretion, Dr. Iserson found, fails it resoundingly.
STINK TEST is application of the stink test raises the question of whether consensus beliefs about privacy are changing so rapidly and drastically that a majority of the populace might eventually consider body cameras acceptable. Indeed, Dr. Brown views this condition as practically a fait accompli: “Are we ready for this next step on the path towards the panopticon? The truth is, we have already taken it” in the form of video training12 and other practices that have reportedly attracted many patients’ support, along with contributing to improvements in certain practice-quality variables.13 There is a distinction between closely regulated institutional quality
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control applications and widespread, scaled-up recording, which Dr. Iserson believes would inevitably clash with core medical values. Dr. Iserson’s analysis of the ethical problems extends beyond the contemporary moment to anticipate how video technology is likely to evolve over time and acquire unanticipated functions. Because of Moore’s Law, the repeatedly observed pattern in which computing power and storage capabilities periodically double, he predicts that practical constraints limiting ED videography will eventually vanish. Advances in voice recognition and visual pattern recognition technology, he expects, will amplify the ability of recordings to reveal more information about patients. Once large-scale video material becomes manageable and manipulable, “the financial people are going to say, ‘Hey, this is cool.’ The plaintiffs’ lawyers, as the third guy [Emergency Physicians Monthly contributor William Sullivan, DO, JD] wrote, are going to love this. They’re just going to sit back and wait and count. But that’s not the reason for my perspective. The reason is because it’s going to violate patient confidentiality and patient privacy, because hackers can get into anything—I mean anything.” Recalling instances in which the medical establishment has resisted immigration officials’ pressures to identify undocumented people in EDs, Dr. Iserson conjectured that hospital chief executive officers should and will respond similarly and put the kibosh on body camera video. He can picture too many troubling scenarios if they fail to do so: an ED visit by a patient with a degree of prominence in any community, for example, could generate video material with a potential for embarrassment and a high value for hackers. A clergyman with hepatitis C, Dr. Iserson hypothesized, whose professional duties include 20A Annals of Emergency Medicine
giving communion, might find parishioners saying, “Oh, sorry, we’re not going to your church any more.” “People’s lives can be destroyed by this kind of practice,” he concludes. “There is absolutely no ethical upside. There’s no financial upside. There’s no educational upside. And unfortunately, it’s going to be really possible to do this in the future....”
EVIDENCE, REALITY, AND POWER
“I
realize there [are] going to be some very tricky issues that need to be worked out,” Dr. Brown said. “But I’m also very confident that there are technological solutions to these problems that in a matter of months, if people wanted to, could be worked out.” He finds a quantitative, not qualitative, difference between video information and other forms of personal information already collected: “When the patient comes to the ED today, we ask for a patient’s name. We ask for their date of birth. We ask for their social security number. We ask for their address. We ask for their cell phone number. We ask for every kind of possible identifying piece of information that you could imagine—all but one, that is, and that is for an ongoing recording of that patient.. “To suggest that having a recording device on the physician’s person is going to in some wise dramatically change the amount of information that we’re recording, I think, is actually not the case. I think that it will change the amount of information that we are capturing, but only by a tiny amount.. To think that this one step...is going to be the tipping point that’s going to now make all these patients stay away from the ED, I think, is probably not the case.”
Lee Tien, JD, senior staff attorney and Adams Chair for Internet Rights at the Electronic Frontier Foundation, a specialist in free speech and privacy issues, grounds his analysis in the disparity between intentions and actual practices in the police use of body cameras, with possible implications for physicians’ potential uses. Although accountability on the part of public servants is the laudable aim, he noted, “How much of it is observing the police, and how much of it is observing the public?” Much of the controversy over police body camera use involves a basic question: “Where is that camera aimed? It’s not at the cops.... That’s why it’s very unclear how much [they will] help accountability if what they really are is a general-purpose surveillance device.” The condition that would justify this level of privacy invasion for most people, Tien believes, is “if there were a treatment-based, patient-based justification for doing it,” advancing not only aggregate aims (research, quality control, and security) but also individual patient care. He finds this criterion consistent with those applicable to other medical incursions on personal autonomy. “You can tell someone, ‘Look, if you want to get the treatment you need, these procedures are necessary,’ but it’s another thing to say, ‘You don’t actually need this for your treatment, but for research purposes, we want to do it.’”
CREATIVE DISRUPTION f one definition of a disruptive technology is one that evolves much faster than the behaviors and mores surrounding it, the video-capable smartphone and the body camera certainly qualify. The GoPro and competitors now constitute a burgeoning sector, including products by
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Taser, Garmin, Xiaomi, Wolfcom, Reveal Media, Pro-Vision Bodycam, and others, potentially including Google Glass if that much-publicized device eventually rolls out. The security equipment industry has moved rapidly to define police departments as a growth market—perhaps faster than most citizens recognize, although increasing attention on the effects these cameras can have on both crime and police brutality may accelerate public debate. Cameras may bring real offenses to light, clarify ambiguous situations, debunk false charges, or exonerate the falsely accused, civilians and police alike. Yet cameras inevitably create trade-offs between information and interpersonal bonds. As columnist David Brooks noted while weighing the forensic benefits and social costs of police cameras, “Putting a camera on someone is a sign that you don’t trust him, or he doesn’t trust you.”14 Dr. Brown’s acceptance of greater surveillance reflects a different conception of policing, and of other forms of institutional power, than some of his critics implicitly hold. “I have had many interactions myself with the police, and none of them have been adversarial,” he reported. “It’s a tiny, tiny minority of all of society’s interactions that are adversarial.” Of those, “situations of power or inappropriate use of force are exactly the ones that we want to record.” Power dynamics between physicians and patients, he added, are in flux and can be underrecognized. “It’s only in the last 20 or 30 years that the physician has been seen as anything other than some kind of powerful figure deciding who will live and who will die, in a way that the patient simply nodded his or her head and said, ‘OK, Doctor, thanks for the advice.’ So it is true that we don’t see this relationship anymore in terms of power, but A, I think that is a very recent phenomenon, Volume 66, no. 4 : October 2015
and B, like it or not, physicians still exercise tremendous power.” He also observed that an ED’s special conditions within the house of medicine, lacking the “transactional” element in which other types of specialists may decline to see a patient, may tip the balance toward public status. “In many ways, the emergency department, I think, could be considered much more of a public space than a private space than the doctor’s office....in some ways an extension of the street, because of the way that people can literally walk in and request—and in some cases demand—care. Now, that doesn’t mean that once they’re in that situation everything is public—but it is, I think, a different way of thinking about it.”
PANOPTICONS HISTORICAL, FICTIONAL, AND CONJECTURAL f any EDs are contemplating adopting a policelike model and becoming part of the surveillance state instead of a safe harbor from it, their leaders must think through the full implications of that transformation. Anglo-American culture offers 2 familiar images that recur in countless debates over surveillance technologies, one real and one fictional: the architectural panopticon proposed by Jeremy Bentham and the telescreen system, which extends even into private residences, in George Orwell’s 1984. Both purport to be conducive to behavioral improvement, yet neither is associated with behavioral adjustments in the direction of greater autonomy or trust. The original nonmetaphorical panopticon—Bentham’s design for a radial prison with a central observation point, from which a jailer could theoretically see into any cell—facilitated behavioral control
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both directly and indirectly, and the indirect form may ultimately be more insidious. Although the central observer couldn’t watch all cells simultaneously, prisoners had no way of knowing whether they were being surveilled at any moment; thus, in a state of constant paranoia, they would regulate their own behavior even if no jailer was even on duty. Orwell’s ubiquitous telescreens enforce social conformity and docility in a similar fashion. If hospital personnel were to begin wearing cameras, it is unlikely that patients’ confidence in them or willingness to mention all medically relevant information would increase. Whether cameras would prevent or trigger antisocial behavior within EDs may be harder to predict, although early experiences suggest a selfregulatory effect. A handful of hospitals in Britain already use video to augment security (Blackpool Victoria Hospital15 and University Hospital of Wales in Cardiff16). At Queen Elizabeth Hospital in Birmingham, cameras on security officers have reportedly reduced violent behavior by patients and injuries to personnel, although the reports are anecdotal and come from a nonobjective source, equipment manufacturer Reveal Media.17 “Unfortunately, we have not had much experience with medical professionals wearing the cameras themselves,” said Ben Read, a spokesperson for Reveal, a camera and software firm that specializes in law enforcement applications. “[H]owever, we have had security officers within hospitals wear our cameras.... In the UK, at least, there is still an ethical and political debate to be had around the use of medical professionals using body-worn video.” A comparable debate has begun on this side of the Atlantic as well, in a culture arguably characterized by greater allegiance to personal liberty Annals of Emergency Medicine 21A
and less acceptance of the levels of surveillance (largely private) that have characterized Orwell’s homeland in recent years. The UK’s national surveillance commissioner himself, former counterterrorism officer Tony Porter, finds Big Brother’s capabilities unsettling: “If people are going round with surveillance equipment attached to them, there should be a genuinely good and compelling reason for that. It changes the nature of society and raises moral and ethical issues.about what sort of society we want to live in.”18 Dr. Tintinalli believes that a discussion of Dr. Brown’s proposal is healthy, if only to help clarify a professional consensus that an ED functions best by remaining an exception to society’s panopticonic encroachments. Hospital acculturation, she finds, involves dedicated counter-Orwellian social safeguards: “When we orient medical students or interns or new physicians, we’re all taught, ‘Do not take pictures! Do not talk about patients in the elevator! When you’re working in the ER, do not scream out loud when you’re presenting the case to the attendant, or vice versa.’” After breaches of these norms by reality-TV broadcasts, “the [public relations] branches and the legal branches have been supersensitized,” she added. “So it’s getting more and more difficult, even for teaching purposes, to do any photography or videos or anything, and I think rightly so.” Section editor: Truman J. Milling, Jr, MD Funding and support: By Annals policy, all authors are required to disclose
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any and all commercial, financial, and other relationships in any way related to the subject of this article as per ICMJE conflict of interest guidelines (see www.icmje.org). The author has stated that no such relationships exist. The views expressed in News and Perspective are those of the authors, and do not reflect the views and opinions of the American College of Emergency Physicians or the editorial board of Annals of Emergency Medicine. http://dx.doi.org/10.1016/j.annemergmed. 2015.07.005
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REFERENCES 1. Brown J. The case for body cameras: good for doctors—and their patients. Emerg Phys Monthly. March 11, 2015. Available at: http://www.epmonthly.com/www.epmonthly. com/features/current-features/the-casefor-body-cameras-good-for-doctors-andtheir-patients/. Accessed April 23, 2015. 2. Paumgarten N. We are a camera. New Yorker. September 22, 2014. Available at: http:// www.newyorker.com/magazine/2014/09/ 22/camera. Accessed April 23, 2015. 3. Genes N. By the numbers: are med-cams financially and technically feasible? Emerg Phys Monthly. March 11, 2015. Available at: http://www.epmonthly.com/www. epmonthly.com/features/current-features/ by-the-numbers-are-med-cams-financiallyand-technically-feasible/. Accessed April 23, 2015. 4. Sullivan W. Cross exam: the legalities of body cams raise a range of questions. Emerg Phys Monthly. March 11, 2015. Available at: http://www.epmonthly.com/ www.epmonthly.com/features/currentfeatures/cross-exam-the-legalities-of-bodycams-raise-a-range-of-questions/. Accessed April 23, 2015. 5. Tintinalli J. The invisible gorilla: are doctors ready to have their professional lives on display? Emerg Phys Monthly. March 11, 2015. Available at: http://www.epmonthly. com/www.epmonthly.com/features/ current-features/the-invisible-gorilla-aredoctors-ready-to-have-their-professionallives-on-display/. Accessed April 23, 2015. 6. American College of Emergency Physicians. Policy statement: recording devices in the
11. 12.
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emergency department. Approved April 2011. Available at: https://www.acep.org/ Clinical—Practice-Management/RecordingDevices-in-the-Emergency-Department/. Accessed April 8, 2015. Geiderman JM, Larkin GL. Commercial filming of patient care activities in hospitals. JAMA. 2002;288:373-379. Geiderman JM. Fame, rights, and videotape. Ann Emerg Med. 2001;37:217-219. American Medical Association. American Medical Association Code of Medical Ethics. Opinion 5.045: filming patients in health care settings. Available at: http:// www.ama-assn.org/ama/pub/physicianresources/medical-ethics/code-medicalethics/opinion5045.page?. Accessed April 29, 2015. Iserson KV. An approach to ethical problems in emergency medicine. In: Iserson KV, Sanders AB, Mathieu D, eds. Ethics in Emergency Medicine. 2nd ed. Tucson, AZ: Galen Press; 1995. Gauthier DP. Morals by Agreement. Oxford, UK: Clarendon Press; 1986. Hoyt DB, Shackford SR, Fridland PH, et al. Video recording trauma resuscitations: an effective teaching technique. J Trauma. 1988;28:435-440. Makary MA. The power of video recording: taking quality to the next level. JAMA. 2013;309:1591-1592. Brooks D. The lost language of privacy. New York Times. April 15, 2015:A23. Available at: http://www.nytimes.com/ 2015/04/14/opinion/david-brooks-thelost-language-of-privacy.html. Accessed April 24, 2015. Blackpool hospital staff given body cameras. BBC News. July 5, 2010. Available at: http://www.bbc.com/news/ 10507249. Accessed April 23, 2015. Body cameras for hospital security staff in Cardiff. BBC News. February 16, 2015. Available at: http://www.bbc.com/news/ uk-wales-south-east-wales-31478057. Accessed April 23, 2015. Hospital injuries down 28% says hospital head of security. Reveal Media. Available at: http://revealmedia.com/case-studies/ reveal-cameras-reduce-hospital-injuries-by28. Accessed April 23, 2015. Weaver M. UK public must wake up to risks of CCTV, says surveillance commissioner. Guardian. January 6, 2015. Available at: http://www.theguardian.com/world/ 2015/jan/06/tony-porter-surveillancecommissioner-risk-cctv-public-transparent. Accessed April 30, 2015.
Volume 66, no. 4 : October 2015
by WILLIAM B. MILLARD, PhD Special Contributor to Annals News & Perspective
thought experiment recently offered by a prominent official at the National Institutes of Health (NIH) about emergency physicians’ use of body cameras has stirred some impassioned debate and no small amount of criticism. Jeremy Brown, MD, director of NIH’s Office of Emergency Care Research, proposed in a recent Emergency Physicians Monthly op-ed1 that body cameras, as used in police departments to record and monitor encounters with civilians, might become part of health care providers’ standard equipment. The technology that has transformed much of the public realm into “the people’s panopticon”2 is still banned from emergency departments (EDs). The idea is at least provocative, and it has provoked leading emergency physicians to denounce it with vigor. Dr. Brown’s suggestion opens with, and is substantively based on, an analogy with the use of body cameras by police. Advocates of this practice contend that it increases accountability and civilized behavior, and Dr. Brown stressed its potential
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for reducing spurious malpractice claims, as well as violence. The article appears alongside 3 companion pieces, collectively labeled “Physician, Record Thyself,” that raise a number of practical considerations in the event body-mounted videography ever becomes a practice in US EDs. One involves quantitative matters, such as the vast scale of video material that would be generated, requiring storage, review, and security.3 Another examines the legal implications, noting that video recordings raise questions of privacy, consent, and control under the Health Insurance Portability and Accountability Act.4 A response by editor-in-chief Judith Tintinalli, MD, MS, although scrupulously avoiding advocating the practice, noted that video could clarify the varying and flawed perceptions of patients and physicians alike, potentially improving on real-time human attention but also forcing all parties “to be ready to have our own behaviors and communications on display,” with all the potential consequences such a condition implies.5 Dr. Tintinalli reported that when Dr. Brown sent in the op-ed article, “all of our editors at Emergency Physicians Monthly thought it was a very
stimulating idea, and it certainly has been. We’ve got a lot of comments on it.... [T]here are a lot of very good views about the difficulties and challenges of it. But in view of what we’re hearing now with just general violence, problems with the police, it seems a topic that’s certainly interesting enough to mention. Now, is it ready for prime time? Of course not, for a whole lot of reasons.... I hope it never happens. I think a hospital setting carries with it a sense of privacy.”
IN DEFENSE r. Brown is happy to discuss and defend the proposal, noting these are his own views and not those of the NIH. Recognizing he has aroused numerous objections, he distinguishes questions about ways to make body camera recording practical, compliant with the Health Insurance Portability and Accountability Act, and congruent with patients’ interests from broader questions about whether it changes the ED environment in unacceptable ways. “Technical questions will have technical solutions, or not,” he observed. “How will privacy be protected? There are some interactions that may not be appropriate for the recorder because of the possibility that this could end up in some kind of public domain.” “The philosophical question,” Dr. Brown said, is another matter. He found some aspects of it already moot. “I think that this is the world that we have moved into. Our cell phones
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record where we are going all the time, unless we take steps not to allow them to do that. Our EZPasses record.where our cars have been.... Some people find it frightening, and I understand that, and other people find that it’s actually very helpful and that these devices produce remarkable benefits. But those benefits do come at a price.” Although widespread video recording in airports, elevators, policecitizen encounters, and other settings has been useful in exposing theft and violence, the ED strikes Dr. Tintinalli as a qualitatively different, nonadversarial environment. “If you’re talking about the medical setting or the ED setting, certainly I don’t agree with video surveillance,” she said. “We’re supposed to be an area that is separate.. Even though it’s an ER, [with] a lot of people and a lot of doctors, it’s still based upon an individual physician-patient relationship. And it needs to stay that way and stay private.”
PREPOSTEROUS? he fundamental questions underlying ED video, say physicianbioethicists who have scrutinized the practice, run deeper than technical or organizational obstacles. “It sounds preposterous for a medical encounter to be videotaped,” said Joel M. Geiderman, MD, cochair of emergency medicine at Cedars-Sinai Medical Center in Los Angeles and chair of the American College of Emergency Physicians’ (ACEP’s) Ethics Committee. When the committee recently discussed the idea of ED videotaping, he reported, “there wasn’t one person who spoke up in favor of it.” Arguing that the “concept of the ED as theater” creates inherent pressures that would compromise privacy,
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confidentiality, consent, and other values that physicians and patients have long considered non-negotiable, he cited the unambiguous language of the College’s policy statement on recording devices in the ED: “ACEP believes that the use of recording devices, including cell phone cameras, in the emergency department for the purpose of capturing photographic, video, or audio media poses significant risks to the privacy and confidentiality of patients and staff. ACEP encourages emergency departments to adopt policies regulating the use of such devices.”6 Reversing this presumption and easing the constraints surrounding private images, he said, involves the “supposition that terrible things happen to both parties, and this would control doctors’ behavior toward patients...and patients’ behavior toward doctors. The assumption is that our relationship is so broken that it needs to be monitored by the camera. It’s not a true premise.” Dr. Geiderman has reviewed situations in which filming or videotaping of hospital patients sets commercial interests into conflict with medical ethics, offering regulatory guidelines in a Journal of the American Medical Association (JAMA) piece coauthored with Gregory L. Larkin, MD, MSPH, of Parkland Memorial.7 He has also faced pressure to admit reality television crews into his own ED, along with arguments that other institutions already participating in videotaping had normalized the practice. Rejecting both the everyone-elseis-doing-it position and a contention that retroactive consent procedures could absolve crews of privacy violations because their presence in a trauma suite already compromises the rights of people who are in no position to consider the pros and
cons dispassionately, Dr. Geiderman insisted that Cedars-Sinai place patients’ privacy first and kick the crews out.8 The ED should remain a private space, Dr. Geiderman contended, for ample reasons: the sensitive interactions between physicians and patients, the vulnerable states in which people enter the ED, the deterrent effect that the possibility of video surveillance might create for patients who need emergency care but have reasons to avoid exposure, and the chances that video material, once created and stored (even if kept off the networks by patients’ veto), could not be kept secure from hackers, leakers, and prurience peddlers.
INFORMED CONSENT xplicit informed consent, Dr. Geiderman pointed out, is essential to the relevant section of the American Medical Association’s Code of Ethics, Opinion 5.045, which adopts ideas and language that he and Dr. Larkin proposed in their 2002 JAMA article.9 Filming can serve legitimate public educational objectives, this provision recognizes, yet commercial filming cannot benefit the patient and must be subject to strict conditions, including the patient’s right to stop filming or withdraw consent at any time, including after the treatment (“up until a reasonable time period before broadcast for public viewing”), and the obtaining of consent by a disinterested third party, not the media team. Even when the recording is used for quality control or evidentiary purposes rather than commercial ends, Dr. Brown’s proposal to mount cameras on ED personnel could change the circumstances so that recording would be a default condition, not a carefully
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controlled, guideline-bound exception to normal procedure. “There’s no doubt in my mind that we would discourage some patients from coming to the emergency department at all,” Dr. Geiderman said, particularly patients whose cultures include strong taboos against bodily exposure to strangers. Dr. Brown pointed out that recording near EDs is not novel. “Almost every single department that I’ve worked in, over the 15 to 20 years of my professional career, had a recording device in the hallways, and near the nursing station, and the entrance and exits to the emergency department, so that patients were already being recorded in those public spaces—and it’s important to note those public spaces were very often...treatment spaces. “We know when spaces are overcrowded that treatment spaces are in the hallway, so you’re already, in these instances, recording the way that patients are being treated, nursing and doctor interactions, on those surveillance cameras. So for some patients it’s already being done.” Professional standards may evolve to regulate recording practices as they have done in other areas, he added.
“The example that many people would first think of [is] the pelvic exam or a rectal exam.... I see the bodycam as now one more chaperone we have to learn to deal with.” Kenneth Iserson, MD, emeritus professor of emergency medicine at the University of Arizona and another ACEP Ethics Committee member, has engaged in collegial discussion of the issue with Dr. Geiderman over the years, including pointcounterpoint exchanges in Annals, and has come around to embrace many of his colleague’s objections to videotaping. Having developed a general algorithm for ethical challenges that arise in emergency practice,10 including tests of impartiality, universalizability, and interpersonal justifiability, Dr. Iserson found that a body camera proposal cannot withstand any of them (Figure). “All three actually have to be in the affirmative,” he observed, “to use a technique...in an ethically appropriate path.” Impartiality, equivalent to the Golden Rule, holds that if a physician were in the patient’s place, the action must be acceptable. “Would you want every emergency physician to be basically videoing you?” he asks. “Not
Figure. Algorithm for ethical decisions in emergency medicine. Modified from Iserson KV. An approach to ethical problems in emergency medicine. In: Iserson KV, Sanders AB, Mathieu D, eds. Ethics in Emergency Medicine. 2nd ed. Tucson, AZ: Galen Press; 1995. Available at: http://www.galenpress.com. Accessed September 4, 2015. Volume 66, no. 4 : October 2015
necessarily, without your knowledge.” Universalizability requires a physician to be willing to have the action performed in all relevantly similar circumstances. Situations like those Dr. Geiderman recounted (real and proposed), in which celebrities enjoy privacy while hoi polloi are fair game for cameras, clearly make hash of this principle. The third test, interpersonal justifiability—which he abbreviates to “the stink test,” noting that “we oftentimes just shorten all our discussions down to the third one”—asks whether a physician can provide good reasons justifying the action to others (peers, superiors, the press, or the public). The stink test applies philosopher David Gauthier’s basic theory of consensus values11 to screen a proposed action for congruence with norms acceptable to all rational persons. A measure that dissolves the distinction between public and private information, undermining patients’ implicit trust in their physicians’ discretion, Dr. Iserson found, fails it resoundingly.
STINK TEST is application of the stink test raises the question of whether consensus beliefs about privacy are changing so rapidly and drastically that a majority of the populace might eventually consider body cameras acceptable. Indeed, Dr. Brown views this condition as practically a fait accompli: “Are we ready for this next step on the path towards the panopticon? The truth is, we have already taken it” in the form of video training12 and other practices that have reportedly attracted many patients’ support, along with contributing to improvements in certain practice-quality variables.13 There is a distinction between closely regulated institutional quality
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control applications and widespread, scaled-up recording, which Dr. Iserson believes would inevitably clash with core medical values. Dr. Iserson’s analysis of the ethical problems extends beyond the contemporary moment to anticipate how video technology is likely to evolve over time and acquire unanticipated functions. Because of Moore’s Law, the repeatedly observed pattern in which computing power and storage capabilities periodically double, he predicts that practical constraints limiting ED videography will eventually vanish. Advances in voice recognition and visual pattern recognition technology, he expects, will amplify the ability of recordings to reveal more information about patients. Once large-scale video material becomes manageable and manipulable, “the financial people are going to say, ‘Hey, this is cool.’ The plaintiffs’ lawyers, as the third guy [Emergency Physicians Monthly contributor William Sullivan, DO, JD] wrote, are going to love this. They’re just going to sit back and wait and count. But that’s not the reason for my perspective. The reason is because it’s going to violate patient confidentiality and patient privacy, because hackers can get into anything—I mean anything.” Recalling instances in which the medical establishment has resisted immigration officials’ pressures to identify undocumented people in EDs, Dr. Iserson conjectured that hospital chief executive officers should and will respond similarly and put the kibosh on body camera video. He can picture too many troubling scenarios if they fail to do so: an ED visit by a patient with a degree of prominence in any community, for example, could generate video material with a potential for embarrassment and a high value for hackers. A clergyman with hepatitis C, Dr. Iserson hypothesized, whose professional duties include 20A Annals of Emergency Medicine
giving communion, might find parishioners saying, “Oh, sorry, we’re not going to your church any more.” “People’s lives can be destroyed by this kind of practice,” he concludes. “There is absolutely no ethical upside. There’s no financial upside. There’s no educational upside. And unfortunately, it’s going to be really possible to do this in the future....”
EVIDENCE, REALITY, AND POWER
“I
realize there [are] going to be some very tricky issues that need to be worked out,” Dr. Brown said. “But I’m also very confident that there are technological solutions to these problems that in a matter of months, if people wanted to, could be worked out.” He finds a quantitative, not qualitative, difference between video information and other forms of personal information already collected: “When the patient comes to the ED today, we ask for a patient’s name. We ask for their date of birth. We ask for their social security number. We ask for their address. We ask for their cell phone number. We ask for every kind of possible identifying piece of information that you could imagine—all but one, that is, and that is for an ongoing recording of that patient.. “To suggest that having a recording device on the physician’s person is going to in some wise dramatically change the amount of information that we’re recording, I think, is actually not the case. I think that it will change the amount of information that we are capturing, but only by a tiny amount.. To think that this one step...is going to be the tipping point that’s going to now make all these patients stay away from the ED, I think, is probably not the case.”
Lee Tien, JD, senior staff attorney and Adams Chair for Internet Rights at the Electronic Frontier Foundation, a specialist in free speech and privacy issues, grounds his analysis in the disparity between intentions and actual practices in the police use of body cameras, with possible implications for physicians’ potential uses. Although accountability on the part of public servants is the laudable aim, he noted, “How much of it is observing the police, and how much of it is observing the public?” Much of the controversy over police body camera use involves a basic question: “Where is that camera aimed? It’s not at the cops.... That’s why it’s very unclear how much [they will] help accountability if what they really are is a general-purpose surveillance device.” The condition that would justify this level of privacy invasion for most people, Tien believes, is “if there were a treatment-based, patient-based justification for doing it,” advancing not only aggregate aims (research, quality control, and security) but also individual patient care. He finds this criterion consistent with those applicable to other medical incursions on personal autonomy. “You can tell someone, ‘Look, if you want to get the treatment you need, these procedures are necessary,’ but it’s another thing to say, ‘You don’t actually need this for your treatment, but for research purposes, we want to do it.’”
CREATIVE DISRUPTION f one definition of a disruptive technology is one that evolves much faster than the behaviors and mores surrounding it, the video-capable smartphone and the body camera certainly qualify. The GoPro and competitors now constitute a burgeoning sector, including products by
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Taser, Garmin, Xiaomi, Wolfcom, Reveal Media, Pro-Vision Bodycam, and others, potentially including Google Glass if that much-publicized device eventually rolls out. The security equipment industry has moved rapidly to define police departments as a growth market—perhaps faster than most citizens recognize, although increasing attention on the effects these cameras can have on both crime and police brutality may accelerate public debate. Cameras may bring real offenses to light, clarify ambiguous situations, debunk false charges, or exonerate the falsely accused, civilians and police alike. Yet cameras inevitably create trade-offs between information and interpersonal bonds. As columnist David Brooks noted while weighing the forensic benefits and social costs of police cameras, “Putting a camera on someone is a sign that you don’t trust him, or he doesn’t trust you.”14 Dr. Brown’s acceptance of greater surveillance reflects a different conception of policing, and of other forms of institutional power, than some of his critics implicitly hold. “I have had many interactions myself with the police, and none of them have been adversarial,” he reported. “It’s a tiny, tiny minority of all of society’s interactions that are adversarial.” Of those, “situations of power or inappropriate use of force are exactly the ones that we want to record.” Power dynamics between physicians and patients, he added, are in flux and can be underrecognized. “It’s only in the last 20 or 30 years that the physician has been seen as anything other than some kind of powerful figure deciding who will live and who will die, in a way that the patient simply nodded his or her head and said, ‘OK, Doctor, thanks for the advice.’ So it is true that we don’t see this relationship anymore in terms of power, but A, I think that is a very recent phenomenon, Volume 66, no. 4 : October 2015
and B, like it or not, physicians still exercise tremendous power.” He also observed that an ED’s special conditions within the house of medicine, lacking the “transactional” element in which other types of specialists may decline to see a patient, may tip the balance toward public status. “In many ways, the emergency department, I think, could be considered much more of a public space than a private space than the doctor’s office....in some ways an extension of the street, because of the way that people can literally walk in and request—and in some cases demand—care. Now, that doesn’t mean that once they’re in that situation everything is public—but it is, I think, a different way of thinking about it.”
PANOPTICONS HISTORICAL, FICTIONAL, AND CONJECTURAL f any EDs are contemplating adopting a policelike model and becoming part of the surveillance state instead of a safe harbor from it, their leaders must think through the full implications of that transformation. Anglo-American culture offers 2 familiar images that recur in countless debates over surveillance technologies, one real and one fictional: the architectural panopticon proposed by Jeremy Bentham and the telescreen system, which extends even into private residences, in George Orwell’s 1984. Both purport to be conducive to behavioral improvement, yet neither is associated with behavioral adjustments in the direction of greater autonomy or trust. The original nonmetaphorical panopticon—Bentham’s design for a radial prison with a central observation point, from which a jailer could theoretically see into any cell—facilitated behavioral control
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both directly and indirectly, and the indirect form may ultimately be more insidious. Although the central observer couldn’t watch all cells simultaneously, prisoners had no way of knowing whether they were being surveilled at any moment; thus, in a state of constant paranoia, they would regulate their own behavior even if no jailer was even on duty. Orwell’s ubiquitous telescreens enforce social conformity and docility in a similar fashion. If hospital personnel were to begin wearing cameras, it is unlikely that patients’ confidence in them or willingness to mention all medically relevant information would increase. Whether cameras would prevent or trigger antisocial behavior within EDs may be harder to predict, although early experiences suggest a selfregulatory effect. A handful of hospitals in Britain already use video to augment security (Blackpool Victoria Hospital15 and University Hospital of Wales in Cardiff16). At Queen Elizabeth Hospital in Birmingham, cameras on security officers have reportedly reduced violent behavior by patients and injuries to personnel, although the reports are anecdotal and come from a nonobjective source, equipment manufacturer Reveal Media.17 “Unfortunately, we have not had much experience with medical professionals wearing the cameras themselves,” said Ben Read, a spokesperson for Reveal, a camera and software firm that specializes in law enforcement applications. “[H]owever, we have had security officers within hospitals wear our cameras.... In the UK, at least, there is still an ethical and political debate to be had around the use of medical professionals using body-worn video.” A comparable debate has begun on this side of the Atlantic as well, in a culture arguably characterized by greater allegiance to personal liberty Annals of Emergency Medicine 21A
and less acceptance of the levels of surveillance (largely private) that have characterized Orwell’s homeland in recent years. The UK’s national surveillance commissioner himself, former counterterrorism officer Tony Porter, finds Big Brother’s capabilities unsettling: “If people are going round with surveillance equipment attached to them, there should be a genuinely good and compelling reason for that. It changes the nature of society and raises moral and ethical issues.about what sort of society we want to live in.”18 Dr. Tintinalli believes that a discussion of Dr. Brown’s proposal is healthy, if only to help clarify a professional consensus that an ED functions best by remaining an exception to society’s panopticonic encroachments. Hospital acculturation, she finds, involves dedicated counter-Orwellian social safeguards: “When we orient medical students or interns or new physicians, we’re all taught, ‘Do not take pictures! Do not talk about patients in the elevator! When you’re working in the ER, do not scream out loud when you’re presenting the case to the attendant, or vice versa.’” After breaches of these norms by reality-TV broadcasts, “the [public relations] branches and the legal branches have been supersensitized,” she added. “So it’s getting more and more difficult, even for teaching purposes, to do any photography or videos or anything, and I think rightly so.” Section editor: Truman J. Milling, Jr, MD Funding and support: By Annals policy, all authors are required to disclose
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any and all commercial, financial, and other relationships in any way related to the subject of this article as per ICMJE conflict of interest guidelines (see www.icmje.org). The author has stated that no such relationships exist. The views expressed in News and Perspective are those of the authors, and do not reflect the views and opinions of the American College of Emergency Physicians or the editorial board of Annals of Emergency Medicine. http://dx.doi.org/10.1016/j.annemergmed. 2015.07.005
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REFERENCES 1. Brown J. The case for body cameras: good for doctors—and their patients. Emerg Phys Monthly. March 11, 2015. Available at: http://www.epmonthly.com/www.epmonthly. com/features/current-features/the-casefor-body-cameras-good-for-doctors-andtheir-patients/. Accessed April 23, 2015. 2. Paumgarten N. We are a camera. New Yorker. September 22, 2014. Available at: http:// www.newyorker.com/magazine/2014/09/ 22/camera. Accessed April 23, 2015. 3. Genes N. By the numbers: are med-cams financially and technically feasible? Emerg Phys Monthly. March 11, 2015. Available at: http://www.epmonthly.com/www. epmonthly.com/features/current-features/ by-the-numbers-are-med-cams-financiallyand-technically-feasible/. Accessed April 23, 2015. 4. Sullivan W. Cross exam: the legalities of body cams raise a range of questions. Emerg Phys Monthly. March 11, 2015. Available at: http://www.epmonthly.com/ www.epmonthly.com/features/currentfeatures/cross-exam-the-legalities-of-bodycams-raise-a-range-of-questions/. Accessed April 23, 2015. 5. Tintinalli J. The invisible gorilla: are doctors ready to have their professional lives on display? Emerg Phys Monthly. March 11, 2015. Available at: http://www.epmonthly. com/www.epmonthly.com/features/ current-features/the-invisible-gorilla-aredoctors-ready-to-have-their-professionallives-on-display/. Accessed April 23, 2015. 6. American College of Emergency Physicians. Policy statement: recording devices in the
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emergency department. Approved April 2011. Available at: https://www.acep.org/ Clinical—Practice-Management/RecordingDevices-in-the-Emergency-Department/. Accessed April 8, 2015. Geiderman JM, Larkin GL. Commercial filming of patient care activities in hospitals. JAMA. 2002;288:373-379. Geiderman JM. Fame, rights, and videotape. Ann Emerg Med. 2001;37:217-219. American Medical Association. American Medical Association Code of Medical Ethics. Opinion 5.045: filming patients in health care settings. Available at: http:// www.ama-assn.org/ama/pub/physicianresources/medical-ethics/code-medicalethics/opinion5045.page?. Accessed April 29, 2015. Iserson KV. An approach to ethical problems in emergency medicine. In: Iserson KV, Sanders AB, Mathieu D, eds. Ethics in Emergency Medicine. 2nd ed. Tucson, AZ: Galen Press; 1995. Gauthier DP. Morals by Agreement. Oxford, UK: Clarendon Press; 1986. Hoyt DB, Shackford SR, Fridland PH, et al. Video recording trauma resuscitations: an effective teaching technique. J Trauma. 1988;28:435-440. Makary MA. The power of video recording: taking quality to the next level. JAMA. 2013;309:1591-1592. Brooks D. The lost language of privacy. New York Times. April 15, 2015:A23. Available at: http://www.nytimes.com/ 2015/04/14/opinion/david-brooks-thelost-language-of-privacy.html. Accessed April 24, 2015. Blackpool hospital staff given body cameras. BBC News. July 5, 2010. Available at: http://www.bbc.com/news/ 10507249. Accessed April 23, 2015. Body cameras for hospital security staff in Cardiff. BBC News. February 16, 2015. Available at: http://www.bbc.com/news/ uk-wales-south-east-wales-31478057. Accessed April 23, 2015. Hospital injuries down 28% says hospital head of security. Reveal Media. Available at: http://revealmedia.com/case-studies/ reveal-cameras-reduce-hospital-injuries-by28. Accessed April 23, 2015. Weaver M. UK public must wake up to risks of CCTV, says surveillance commissioner. Guardian. January 6, 2015. Available at: http://www.theguardian.com/world/ 2015/jan/06/tony-porter-surveillancecommissioner-risk-cctv-public-transparent. Accessed April 30, 2015.
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