Starting an EMS Body-Worn Camera Program

First of two parts.

About half of police departments in the United States have implemented some sort of body-worn camera (BWC) program.¹ Adoption of BWCs by law enforcement agencies has roughly doubled since 2014, the year of the officer-involved shooting of Michael Brown in Ferguson, Mo. Axon, Inc., the largest manufacturer of BWCs in the United States, has seen growing interest in the use of BWCs by EMS agencies in the United States and elsewhere. [Disclosure: the author holds stock in Axon, Inc.]

In conjunction with Axon, Cypress Creek EMS (CCEMS), outside Houston, Tex., initiated a trial BWC program that ran for 18 months between 2013 and 2015. The program was a success, and in 2019 CCEMS became the first EMS agency identified in the United States to require BWC use by its lead field providers on every unit.² 

According to CCEMS Assistant Executive Director Wren Nealy, BWCs “improve clinical practice and the safety of our personnel” and have not resulted in any complaints from patients or the medical community. The London Ambulance Service began a BWC program in late 2018 to help keep its responders safe from violent patients, and New South Wales Ambulance in Australia began its program in late 2019.^3,4 

Why Use BWCs in EMS?

There are both pros and cons to making recordings of EMS patient encounters. The main anticipated benefits include higher-quality patient care, better behavior (from both providers and patients), and stronger evidence for legal proceedings.

EMS quality assurance (QA) and training programs can use videos captured during calls to identify both good and poor patient care. It will soon be possible to use BWCs as telemedicine cameras to enable base station physicians and nurses to see what field personnel are seeing in real time. Additionally, using an app, EMS personnel can play videos recorded in the field for emergency department personnel to improve the quality and amount of information communicated during a patient handover. A recent pilot study in Hennepin County, Minn. suggests BWC recordings allow EMS personnel to produce higher-quality patient documentation because they can review time-stamped videos of the encounter as they write their reports.⁵ 

BWC videos also give supervisors the ability to know what happened on any given call without having to be there in person, and they can help improve employee behavior because personnel know their actions are subject to review. A 2015 study of BWC usage in law enforcement demonstrated that the cameras created a neutral “third eye” that deescalated interactions and led to improved behavior on the part of both suspects and officers.⁶ There is every reason to believe this same effect would occur in an EMS setting as well.

Contemporaneous BWC recordings are admissible in court as evidence because commercially available BWC systems are designed with a chain-of-custody and antitamper mechanisms in mind. Videos can also provide solid documentation of refusals of care—something that can be hard to do well in a patient care report.

Videos of patient encounters can also be pivotal in substantiating or disproving assault allegations against either providers or patients, especially during transport, when only the patient and provider are in the patient compartment of the ambulance. Recordings can show patient care was either adequate or substandard. As long as providers deliver treatment according to their standard of care, recordings can help reduce legal liability.

Arguments Against

Those against using BWCs in EMS tend to cite one or more of three basic arguments: the increased likelihood of an agency or a provider being held liable in a lawsuit if the video demonstrates poor patient care; objections to “big brother” watching providers’ every move; and the costs associated with implementing and maintaining a BWC program.

The first of these arguments is undeniably valid. BWC documentation of poor patient care could certainly make it harder to defend a negligence lawsuit. However, as attorney Matthew Streger of the EMS law firm Keavney and Streger points out, “If you provide good care and do what you’re supposed to do, then you have nothing to worry about. Even when care may be lacking, if you can show you’re using the BWC videos to do QA and you’re working to improve substandard care when you identify it, you will be in a more defensible position. In either case, you’re better off with a BWC showing exactly what happened than if the events are left up to the imaginations of attorneys and jurors.” 

Streger further points out members of the public record many scenes with their cell phones. “I want an EMS BWC recording that doesn’t have gaps and shows care from our perspective in order to present a full picture of what may have happened,” says Streger.

Employees may express concerns about being watched all the time when a BWC program is being planned; however, as the law enforcement BWC experience has demonstrated, these fears generally give way to an understanding that the protection BWCs offer outweighs the concerns officers may initially have. As a recent study suggests, after gaining experience with BWCs, law enforcement officers generally viewed them positively and felt that “no good cop should fear a camera.”⁷ 

Finally, while BWC programs do represent an additional cost, they might not be as expensive as one might think, and the benefits of decreased civil liability and increased public confidence in an agency and its providers could potentially far outweigh costs associated with implementation.

Policy Development

Nealy suggests developing sound BWC policies is the cornerstone to a successful EMS BWC program. “Privacy concerns and the added concern of PHI/HIPAA mandate a sound policy that governs the use, storage and protection of that video,” he says. 

According to Nealy, interested agencies should begin by forming a BWC policy committee consisting of management, frontline providers, labor representatives (in unionized agencies), legal counsel, hospital administrators, and medical direction. The committee should address policy considerations including BWC operational guidelines, permissible video uses, storage practices, protected health information (PHI) issues, and state laws governing the making of recordings.

Operational Concerns

Personnel need to know when recordings should and should not be made. Should a recording be started when the call is received or when the provider makes contact with the patient? Some agencies may wish to capture the response as well as the on-scene and transport portions of calls.

For some agencies in-vehicle cameras may capture the response. For others it may be too expensive to store the additional video. There is no right answer as to when to initiate the recording; however, the agency will need to give its personnel clear guidance on this issue.

Likewise, the policy will also need to state when a recording may (or must) be ended. For example, a policy might state that personnel may end a recording once the patient signs a refusal. Other agencies may wish to capture the patient transfer. Exactly when to end a recording is a matter the policy committee must decide and make clear. Similarly, the policy should delineate areas off-limits to recording (e.g., public rest rooms, security-related facilities).

The policy should also address when and how videos are to be “tagged” (the process by which metadata is attached to the video file), the resolution required (this is generally selectable by the agency and preprogrammed for all BWC devices), and the amount of preactivation recording time. This last feature refers to the amount of video buffered prior to manual activation of the camera by the user.

Most BWCs can be programmed to record continually without user activation but to keep only a certain number of seconds of video before the record button is pressed. This ensures that events leading up to an activation will be included in a recording, which is valuable when circumstances change rapidly.

For example, if an EMT were suddenly to be assaulted while not on a call, it would be nice to have the moments leading up to the assault recorded. Agencies can determine how long this buffer should be, with the understanding that long videos cost more to retain.

PHI Concerns

One of the most frequently raised policy issues deals with how the privacy provisions of the federal Health Insurance Portability and Accountability Act (HIPAA) affect BWC recordings. The answer, according to Streger, is that making recordings while rendering patient care is perfectly permissible under HIPAA, but the law requires an EMS agency to maintain the confidentiality of such recordings because they contain protected health information. This means agencies must safeguard against the unauthorized release of BWC videos.

Commercially available BWC systems already address this because of the evidentiary value of the recordings in judicial proceedings, but agencies wishing to store videos on secure commercial servers would need to execute a HIPAA business associate agreement to be fully compliant with HIPAA. Users upload BWC videos to a secured evidence retention system, and access to stored videos is limited to only certain users with a legitimate need to see them.

Further, video storage systems prevent the videos from alteration (although agencies can redact videos for certain authorized releases). Under HIPAA, patients (or their authorized representatives) must be given access to videos that are part of their medical record in the same way they must be able to get copies of their patient care reports.

Consent Concerns

Another privacy concern deals with patient rights with respect to making a recording. In some states only one party need consent to a making a recording; however, currently in 16 states both parties must consent. It is important for BWC policies to spell out how EMS personnel must obtain consent and when it is permissible for a patient to revoke or deny it.

Permissible Use

BWC policies must also address the circumstances under which agencies may make copies of videos and the process for their legitimate release. BWC policies should clearly delineate what constitutes legitimate use of BWC video.

These may include QA review (an area expressly permitted under HIPAA), telemedicine and patient handover, preparation of a legal defense, training, discipline, and compliance with any legal court order. Finally, no BWC policy would be acceptable without clearly prohibiting unauthorized viewing, downloading, or release of videos (especially on social media).

Streger stresses that policies should address the use of BWC videos within an agency’s overall QA program. Discovery laws vary from state to state, so it is important the BWC policy committee thoroughly research the applicable laws and work with legal counsel to ensure the BWC policy will be legally sufficient to protect videos from release under simple Freedom of Information Act requests while still allowing agencies to access them for self-critical analysis.

Retention Concerns

Video storage on secure servers can be expensive, so the retention policy should prescribe a standard length of time after which videos are expunged automatically. Because records retention laws vary by state, legal counsel should weigh in on how long videos should be retained.

It is important to have a mechanism by which videos are preserved for use as evidence. If the agency deems the video to be part of a patient’s medical record, it may be required to keep it longer than it would otherwise want to (which could be extremely expensive, depending on call volume).

Streger recommends agencies weigh the idea of considering videos an adjunct to the call information, but having a standard time (e.g., 180 days) after which deletion occurs unless the agency is put on notice by an attorney that the videos would be needed as part of a legal case.

Since the time frame for notification of a pending lawsuit against an agency varies from state to state and depends on the type of agency involved, the BWC committee should be sure to create this policy with applicable laws in mind.

Discipline Concerns

One potential area of concern is that agencies will uses BWC videos against employees in disciplinary cases. Nealy says carefully crafted policies can address such concerns: “We made it clear in our written policies that unless you commit a criminal act or something so egregious that we can’t get past it with remedial training, we will not use the videos for discipline or terminations.”

Nealy indicated the videos could be used in a discussion about what providers might do better in the future or more appropriate ways to interact with a patient, but they could not be used for formal discipline. While avoiding discipline, these videos will be invaluable in providing remedial training and process improvement for EMS providers and systems.

Legal Review

Legal counsel must thoroughly review all aspects of the BWC program for compliance with all applicable statutes. These include HIPAA, any state laws governing video and/or audio recording of conversations, state/local records retention laws, self-critical analysis and other privileges, applicable Freedom of Information requirements, and any other laws or regulations that might be relevant.

The importance of thorough and competent legal review cannot be overstated. Be cognizant that good legal review can take time. For CCEMS it took four months. Allow sufficient time in the implementation process to ensure legal review is not rushed.

Looking Ahead

This article has covered the rationale for implementing a BWC program in an EMS agency and some of the policy issues agencies must consider. A future article will address  decisions agencies will need to make, including BWC features and operations, security, costs, and logistical realities in various EMS settings.  

References

1. Miller B. Just How Common Are Body Cameras in Police Departments? Govtech, 2019 Jun 28; www.govtech.com/data/Just-How-Common-Are-Body-Cameras-in-Police-Departments.html.

2. Axon. First EMS Provider Joins Axon Network with Full Body Camera Deployment for Paramedics. Cision PR Newswire, 2019 Jan 8; www.prnewswire.com/news-releases/first-ems-provider-joins-axon-network-with-full-body-camera-deployment-for-paramedics-300774453.html.

3. Donnelly L. Paramedics to be given body cameras to protect them from violent patients. Telegraph, 2018 Jul 1; https://www.telegraph.co.uk/news/2018/06/30/paramedics-given-body-cameras-protect-violent-patients/.

4. Lackey B. Revealed: The extreme lengths paramedics are taking to stop them being used as ‘punching bags’ by aggressive patients. Daily Mail, 2019 Nov 20; https://www.dailymail.co.uk/news/article-7704965/Paramedics-trial-wearing-body-cameras-stop-punching-bags.html. 

5. Ho JD, Dawes DM, McKay EM, et al. Effect of Body-Worn Cameras on EMS Documentation Accuracy: A Pilot Study. Prehosp Emerg Care, 2017 Mar–Apr; 21(2): 263–71.

6. Ariel B, Farrar WA, Sutherland A. The Effect of Police Body-Worn Cameras on Use of Force and Citizens’ Complaints Against the Police: A Randomized Controlled Trial. J Quantitative Criminology, 2015; 31: 509–35.

7. Fallik SW, Seuchar R, Crichlow VJ. Body-Worn Cameras in the Post-Ferguson Era: An Exploration of Law Enforcement Perspectives. J Police Criminal Psychology, 2018 Oct 25; https://link.springer.com/article/10.1007%2Fs11896-018-9300-2.

Erik S. Gaull, NRP, CEM, CPP, leads the emergency management consulting practice at Cadmus Group, LLC and is a firefighter/paramedic III with the CabinJohn Park (Md.) Volunteer Fire Department.. He is also a member of the EMS World editorial advisory board.