CVS - Opus 3 inc.

The Panopticon Revisited: addressing
patient and family member use of
Covert Video Surveillance (CVS)
Sally Bean, JD, MA Ethicist & Policy Advisor
Sunnybrook Health Sciences Centre &
University of Toronto, Joint Centre for Bioethics
Canadian Bioethics Society
sally.bean@utoronto.ca
June 1, 2012

Roadmap:
Introduction
Introduction
Definition
Illustrative cases
Stakeholder perspectives
Ethical issues
Relevant law
Managing CVS Situations
Potential organizational response(s)
Management plans
Summary

The Panopticon

Definition
Covert Video Surveillance (CVS):
Term coined for situations of suspected child abuse to
characterize recording interactions between child and
parent/guardian without the knowledge of the
parent/guardian (Shabde & Craft 1999)
CVS used to monitor parent guardian suspected of
Munchausen by proxy or healthcare providers under
suspicion of elder abuse. (Shabde & Craft 1999; Toben
& Cordon 2010)
Also referred to as “surreptitious surreptitious recording” recording or
“electric electric monitoring”
monitoring

Illustrative Cases
Substitute Decision Maker (SDM) believes that staff are
not checking in on incapable patient throughout the
night.
SDM Purchases clock radio that can capture audio and
video onto a memory card and positions it on patient’s patient s
bedside table so the door and anyone exiting or entering is
visible.
Later complains to nurse manager and contends can
“prove prove” allegations.
Patient surreptitiously uses phone with web cam to
document nurse-patient nurse patient interactions to demonstrate
quality of care concerns such as response times to call
bell.

Key Issues/Questions:
Should we deter surreptitious recording of staff members by
patients & families?
What policies and/or change management approaches will we
implement?
How should we address these situations after they arise, arise,
i.e.
what will be associated repercussions or management?
Since this is not a legally prohibited/sanctioned activity, there there
is
limited recourse
What is our duty/obligation to staff members to disclose
surreptitious recording?
How can we rebuild impaired trust relationships with patients
and families?

Deterring CVS?
Most hospital ‘Consent Consent to Recording’ Recording policies pertain
to overt recording, e.g. recording the birth of a child,
taking a picture of a trusted healthcare provider and
taking pictures of patients/family for hospital
advertisements, brochures, media, etc.
To date, most policies simply note that express written
consent from staff is required for recording (and do not
differentiate between overt and covert recording)
Will explicitly broaching the subject matter of covert
recording through signage, prohibition via policy, etc.
have the opposite effect, i.e. encourage CVS activities?

Stakeholder Perspectives:
{ {
Patient & Family Perspective
Means to equalize power
imbalance
Creates evidence to
substantiate quality of
care concerns
Staff should have
“nothing nothing to hide” hide in
course of work duties
Staff are public
employees in public
hospital
Promoting patient’s patient s
safety outweighs staff’s staff s
privacy concerns
Employee & Org Perspective
No informed consent so staff
autonomy and org’s org s ability to
control flow of information is
undermined
Potential harm to employees?
Obligation to disclose to
affected employees?
Individual &/or organization
could be negatively depicted
in public eye Should standard
vary in residential areas, e.g.
long-term long term care home?
Public hospital can enforce its
own policies, e.g. parking,
smoking bans, etc.

Ethical Issues
Indication of impaired therapeutic trust relationship
Without express consent, autonomy of HCPs is
undermines
Vulnerability of incapable patients that cannot consent to
having their privacy limited/infringed
Fair and proportionate org response(s) to CVS
Duty/obligation to disclose CVS activities to staff

Privacy Tort Law Background
Roots of privacy tort first articulated in 1890 by Warren &
Brandeis
Argued for creation of new right protecting an individual’s individual s personal
space from unnecessary and unauthorized public disclosure (and
thereby provide redress for infringement); (Abril 2007)
In 1960, Prosser categorized privacy law into four distinct torts torts
which was adopted in the 2 nd Restatement of Torts:
**Invasion of privacy by intrusion**
Public disclosure of private facts
False light
Appropriation
(Prosser 1960)
Appropriation

Privacy Tort Law Background
To make a case for invasion of privacy by intrusion, a
plaintiff must show:
1. an unauthorized intrusion;
2. that the intrusion was highly offensive to a reasonable
person;
3. the matter intruded upon was private; and,
4. the intrusion caused anguish and suffering.
2 nd Restatement of Torts (2010)

Canadian Law
Personal Information Protection and Electronic Documents Act
(PIPEDA-federal); (PIPEDA federal); Personal Health Information Protection Act
(PHIPA ) & Freedom of Information and Protection of Privacy Act
(FIPPA) (Provincial-Ontario):
(Provincial Ontario):
none applies to private rights of action between individuals
The SCC has consistently interpreted the Charter’s Charter s s. 8 protection
against unreasonable search and seizure as protecting the underlying underlying
right to privacy.
Privacy Tort Law is developing in Canada:
For example, in Jan 2012, Ontario COA recognized a right to bring bring
a civil
action for invasion of personal privacy (Jones v. Tsige)
In Jones v. Tsige, ex-wife ex wife working at a bank inappropriately accessed the
account records of her ex-husband
ex husband’s s new partner
4 common law provinces have statutorily created tort of invasion of
privacy:
B.C., Manitoba, Saskatchewan & Newfoundland; Civil Code of Quebe Quebec c explicitly
protects right to privacy
No Provincial privacy legislation precisely defines what constit constitutes utes an invasion of
privacy

US Judicial Assessment of Privacy Breaches
Two key factors figure prominently in assessing breach of privacy privacy
cases:
1. Where the privacy invasion occurred (i.e. in a public versus private
location) AND
2. Who perpetrated the privacy invasion (i.e. government actor or or
member of public);(Abril 2007)
To help differentiate between public versus private locations, US
courts ask whether there was a reasonable expectation of privacy
in the location where the alleged breach occurred?
However, this means that our rights change when technology does
(Friedman 2012)
In US. V. Jones (2012) USSC Justice Sotomayor noted that the court court’s
s
longstanding reliance on expectations of privacy are “ill ill-suited suited to the
digital age” age (Friedman 2012)

Potential Organizational Responses:
Corporate Policy prohibiting filming/ recording of staff without
consent
Possible responses to infractions:
Punitive measures such as supervised visitation
View it as a sign of impaired trust and approach in a restorativ restorative e manner, i.e.
how can we win back your trust?
AND/OR
Could potentially require escalation or consult with patient rel relations, ations, for
example
“Universal Universal Precautions”/ Precautions / Transparency Approach
Orient staff that cannot ensure that patient/family filming will not occur
in course of professional duties so assume it will occur

Managing CVS Situations
Reasonable Responses to CVS?
When situations have been encountered, found that there has been a
punitive overreaction, e.g. limited visitation, required chaperoned
chaperoned
visitation, etc.
However, isolation due to restricted visitation could have unint unintended ended
negative consequences on a patient patient’s s well well-being being
If unapproved equipment is put into place (the clock radio example) example)
can be removed due to potential interference with medical devices devices
but have no legal grounds to keep property so must be relinquished
relinquished
to owner

Managing CVS Situations
Duty to Disclose to Employees?
HR noted, if camera not removed, employees who are at risk from
having their activity caught by the camera should be told that the the
camera is there.
There should also be some communication to them as to why the
camera is being allowed.
However, the question remains that if the hospital does require
removal of the camera, is there an ethical obligation to inform staff
who may have been recorded?

Managing CVS Situations:
How should managers respond when they are provided
with recordings from CVS?
Condone activity if watch the recording but could be an
opportunity to learn about inappropriate employee conduct… conduct
As an organization, we decided to informally decline to
watch the recording but ask that patient/family describe
what activity occurred and discuss associated concerns

Summary
No applicable legislation or common law to address
surreptitious recording of staff in course of their
professional duties.
While we can prohibit the activity via hospital policy,
enforcing penalties, repercussions, etc. is challenging
and should (ideally) be a proportional response.
As part of change management, may want to
consider a “universal universal precautions” precautions or transparency
approach in which staff are cautioned that while CVS
is discouraged/prohibited, it may/will occur

Works Cited:
Toben B. Cordon M. Legislative Stasis: The Failures of Legislation Legislati on and
Legislative Proposals Permitting the Use of Electronic Monitoring
Monitoring
Devices in Nursing Homes. Baylor Law Review 2010; 59(3): 675-734. 675 734.
Shabde N. Craft A. Covert video surveillance: an important
investigative tool or a breach of trust? Arch Dis Child 1999;81:291-294
1999;81:291 294
Swire P. Bermann S. Information Privacy: Official Reference for the
Certified Information Privacy
Professional. (2007) International Association of Privacy Professionals
Professionals
Publication.
Jones v. Tsige. Tsige.
2012 ONCA 32.
Abril P.S. Recasting Privacy Torts in a Spaceless World. Harvard
Journal of Law & Technology. 2007; 21(1): 1-47. 1 47.
Friedman B. Privacy, Technology & Law. The New York Times. Times.
Jan. 28,
2012.
Prosser D. Privacy, 48 Cal L. Rev. 383, 389 (1960).

Questions?
E-mail: sally.bean@utoronto.ca
*Special Thanks to Maria McDonald*