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Body cameras: A valuable tool or a legal liability?

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Body cameras: A valuable tool or a legal liability?

 

As police departments discuss body cameras, hospital security departments weigh the pros and cons of video footage

As protests against police brutality have spread across the country following the events in Ferguson, Missouri, many have called for the use of body cameras as a means of holding police officers accountable and providing verifiable evidence following confrontations with citizens.

In the wake of that discussion, some hospitals security departments have been faced with the same discussion. But the merits of body cameras appear to be even less clear cut in the hospital security realm, although it can be equally as divisive.

In truth, the answer isn’t so cut and dry, and the decision for or against body cameras will depend on the risks within your facility.

“Some people have an all or nothing view of it, but in the real world everything is a shade of grey,” says Bill H. Nesbitt, CPP, president of Security Management Services International, Inc. (www.smsiinc.com) in Newbury Park, California.

Nesbit says that he sees both sides of the discussion. On one hand, body cameras could serve as a valuable training tool to show officers appropriate de-escalation techniques with real situations. They could also provide a defense against frivolous claims if officers are forced to engage with a patient or visitor. At the same time, body cameras may create additional liability if an officer fails to adhere to the proper protocols.

Furthermore, Nesbit says, body cameras aren’t a valuable deterrent to criminal behavior.

Others argue that if used properly, body cameras could be a valuable tool for healthcare security, although a comprehensive policy that accounts for how the video is used, retained, and released, would be a necessary.

 “From a liability prevention perspective, body cameras should be encouraged,” says Karim H. Vellani, CPP, CSC, president of Threat Analysis Group, LLC in Houston. “If security officers do the right thing, body cameras help.  If security officers are doing the wrong thing, body cameras will likely bring out the truth.”

Factor in HIPAA laws, and body cameras make for a daunting and divisive issue, but one that more hospital security leaders may be faced with in the near future.

The pros and cons

Although Nesbitt says that he doesn’t stand definitively on one side or the other of the debate, but he does think that healthcare facilities should proceed with caution when it comes to body cameras. As an expert witness, he has seen both sides of the coin: Cases in which the defense has used video to successfully fight off a claim, and cases in which the video has been detrimental to the defense, rather than exculpatory. More often, video evidence falls into the latter category.

However, Nesbitt also sees how body cameras could offer an excellent training tool for security directors that are coaching new officers.

“I think they could have some value, but I think you just need to be cautious about where you apply them and where you don’t,” he says.

Paul Hughes, chief operations officer with Guardian 8 Cooperation, a security equipment manufacturer based in Scottsdale, Arizona, that offers “enhanced non-lethal defense” equipment, is decidedly in the pro camp, for reasons he says go beyond his ties to the equipment sector. He believes that hospital security departments are going through a transition similar to the one that police departments faced with dash cameras decades ago. At first, officers were overwhelmingly resistant to dash cameras; now it’s standard practice.

Hughes, who used to work with Taser, says that video footage can be invaluable in warding off frivolous lawsuits. Lawsuits that challenge how hospital security responded to an incident are frequently brought by lawyers working on a contingency basis, he says. In many cases, the lawyer will wait to sue the hospital until one year and 11 months after the incident, knowing that healthcare has a high turnover rate. When no one remembers what happened, they push for a settlement.

“They start out of the gate threatening to sue but what they really mean is if you give us $200,000 we’ll go away,” he says. “You do enough of those and it gets a little expensive after a while.”

Once there is video footage and less ambiguity, those lawsuits tend to disappear, he adds.

From a training perspective, body cameras provide security directors the opportunity to fix small problems before they escalate into large ones.

“When I hear people say I don’t want a camera on my guys because it creates liability, it tells us they know their guys are doing it wrong, they just don’t know how to fix it,” Hughes says.

Policy considerations

Like any piece of security equipment, the use of body cameras requires a detailed and exhaustive policy, much of which should focus on video retention requirements and media release criteria, Vellani says.

“In other words, what video do we retain from the body cameras?” he says. “How long do we retain that video?  Under what conditions do we release the video to the media and others?  How do we respond to subpoenas?”

Essentially, these questions all revolve around how the video will be used. Hughes says that the reason there has been a sudden call for body cameras, particularly for police officers, is because people want accountability when it comes to use of force. He believes traditional body cameras “overshoot the mark” by capturing video for the duration of an officers shift. Instead, Guardian 8 has created the Pro V2, a handheld device that begins recording once it is activated by the user. In addition to recording video, the device emits and audible notification when it is activated, initiates a siren and strobe light, automatically communicates with the command center, and releases pepper spray when fully activated. The entire incident, along with audio, is captured by the device.

Depending on the jurisdiction, state laws require that digital evidence is kept for anywhere from three to seven years. Additionally, body cameras are only valuable if someone is reviewing the video. As a matter of policy, Hughes says he would recommend reviewing at least an hour of video, per officers, per week.

“If I was using body cameras, I wouldn’t be able to watch all the video my guys are taking, but if I’m just recording the incidents they are getting into, more than likely, especially in a hospital setting, I’m going to have other people around to explain what led up to the incident,” he says.

It’s important that cameras can capture audio as well, Vellani says.

“Sometimes, off-camera voices and noises can be beneficial in providing context to the video,” he says. “Policies should be developed to strictly govern the use of body cameras.”

Navigating HIPAA

Perhaps the biggest concern surrounding body cameras is the implications the equipment has with the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

There are two basic rules that make up the framework of HIPAA: Privacy and security. The Privacy Rule, effective in 2003, regulates the extent to which a provider or health plan can use or disclose protected health information. The Security Rule, also effective in 2003, deals specifically with administrative, physical, and technical safe guards regarding Electronic Protected Health Information.

The regulation does not bar security officers from filming patient interactions, but that video footage that could be used to identify a patient would certainly be considered protected health information, says Robert Belfort, a partner in the healthcare practice at Manatt, Phelps & Phillips, LLP in New York City.

“To the extent that a security guard is allowed to go to into patient rooms and respond to incidents, I don’t see why they wouldn’t be able to film those incidents,” he says. “I don’t think there is anything in the HIPAA privacy rule that that prohibits them from doing that. I think there may be more issues that arise if they actually want to disclose those images outside the organization in different situations to defend themselves.”

Belfort says that hospitals are generally permitted to use patient information do defend itself in a lawsuit, or during an investigation by regulators, like CMS.

“From a pure privacy standpoint I don’t think showing the images is fundamentally different than having the security guard testify about what happened or what they saw,” he says. “It’s the disclosure of the same information, just in a different format.”

 However, video footage from body cams will still need to meet the requirements of the Security Rule, meaning the same protections afforded to other types of protected health information must be applied to video footage. Hospitals should have a policy that outlines storage requirements and safeguards, and media should not be stored on unencrypted portable electronic devices. If video files are stored on hospital servers, there should be security checks to prevent access.

HIPAA also requires providers to conduct a periodic security risk analysis that identifies threats and vulnerabilities, Belfort says. Unlike electronic medical records, which are often available to all providers in the hospital in the interest of patient care, security footage would only need to be accessible to a limited number of people.

“You would want have a very closed system that limited access to maybe supervisors in the security department, or an attorney that might need the information in defense of the hospital,” Belfort says. “It would be a much narrower type of system.”

The rules are little less defined when it comes to using security footage as a training tool, Belfort adds. The Privacy Rule allows healthcare entities to disclose protected health information to facilitate treatment, payment or healthcare operations. Healthcare operations include “training healthcare and non-healthcare professionals,” although whether or not a security officer would meet the legal definition of a non-healthcare professional could be a “grey area,” Belfort says.

“I think it’s something where I would want to get some guidance from the government before I assumed that was permissible,” he says.

 




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