Commercial filming of patient care activities is common in hospital
settings. This article reviews common circumstances in which patients are
commercially filmed, explores the potential positive and negative aspects
of filming, and considers the ethical and legal issues associated with commercial
filming of patients in hospital settings. We examine the competing goals of
commercial filming and the duties of journalists vs the rights of patients
to privacy. Current standards and recommendations for commercial filming of
patient care activities are reviewed and additional recommendations are offered.
Filming patient care activities for broadcast television is a long-standing
practice that appears to be growing more common as we approach the era of
500-channel programming and as reality-based offerings regularly breach old
barriers and taboos.1-4
Recently, the ethical and legal issues that should be considered when filming
patients while they are receiving care have begun to be addressed.5-11
This article will review the common circumstances in which patients are commercially
filmed in hospitals, explore potential positive aspects and negative consequences,
address ethical and legal considerations, review current standards and recommendations,
and suggest additional recommendations. For the purpose of this article, the
terms filming and taping
will be used interchangeably, although they are technically different. Filming
for educational, quality improvement, or documentation purposes is not addressed.12-16
What Is Commercial Filming and Why Is It Done?
Health care features are a staple of television news, broadcast magazine
programs, documentaries, and reality television shows. Patients are filmed
before, during, and after care in multiple settings, including emergency departments,
clinics, operating rooms, intensive care units, open wards, and private hospital
rooms. Sometimes, a health care facility is used as a backdrop for a story.
Pharmaceutical companies or device manufacturers may film patient care activities
for marketing or training purposes. All of these are examples of commercial
filming.
The question of why there is such interest in filming patient encounters
for television merits study, although research in this area is lacking. Fictional
accounts of patient-physician encounters have been popular for decades, as
demonstrated by the production of more than 60 prime-time television medical
series between 1952 and 1995.17
The public has a robust interest in matters of science and health.18,19 Television is one of the most frequently
cited sources for health-related information.20,21
In addition, hundreds of popular Web sites22-24
and an entire cable channel (Discovery Health) are devoted to medical and
health-related topics.25 A symbiosis exists
among the public with its desire for more knowledge regarding health-related
matters, the health care industry with an interest in marketing to and educating
the public, and television broadcasters seeking to fill their expanded schedules.26,27
Added to the quest for information is the current public appetite for
reality-based television programs that transmit images of real-life, often
intimate situations into the home.4 Currently,
there are 29 Web sites devoted to reality-based programs and 62 programs either
on the air or in production.2,3
Standard offerings of reality-based television programs include pursuits,
hostage standoffs, televised court proceedings, voyeuristic fare in which
participants are filmed in personal situations, and programs that videotape
work activities of police, paramedics, and physicians. The latter 2 examples
involve filming patients, their family, and staff members in hospitals.
Positive Aspects of Filming Patient Encounters
From a societal perspective, there are potential benefits derived from
filming medical encounters. The demystification of some aspects of health
care may create an environment in which patients may be more likely to seek
care.26 This can be especially important when
there is fear of having a condition, or when there is fear of treatment. Furthermore,
the educational aspects that accompany medical stories may help the public
understand the presentations of diseases and may encourage patients to seek
early examination or treatment.27-30
Another potential benefit is the prevention of illness, injury, substance
abuse, or acquired disease.19,31,32
As the commonly used expression "poster child" suggests, a value is accorded
a visual image of a person actually afflicted with a disease or the beneficiary
of a treatment. The approach of focusing on individual patients may be used
to garner support either for those patients or to increase research funding
for highlighted diseases.1,33-35
Filming patient encounters may, theoretically, have the effect of improving
patient care.36-38
Performing in front of a camera could cause caregivers to be more careful,
attentive, or courteous. Video also provides a visual and auditory record
of clinician performance and clinical events that would otherwise not be available.16 Commercial filming can highlight safety issues related
to either the delivery of care or injury and illness prevention.17
Physicians and health care organizations also have an interest in instructing
the public about the latest modalities available to treat certain diseases.
The public has a right to know that there are differences in outcomes when
some diseases are treated at particular institutions, that there are new treatments
or research protocols available in some locations, or, alternatively, that
some treatments, institutions, or professionals put them at risk for adverse
outcomes.39-42
Similar to advertising, as long as there are no misleading or deceptive statements
or unjustified claims of success or advantage over others, such information
is ethical and may be useful.43
Individual patients might benefit by being filmed. For some, appearing
on television may raise self-esteem for having fought an illness and may improve
psychological well-being.6,37
Individuals may feel psychologically rewarded by sharing their story with
others who might benefit from it. Individual institutions also may expect
to benefit from the exposure they receive by allowing filming of patient care
activities.4 This has resulted in participation
by prestigious academic medical centers.4,27
From the standpoint of the medical profession, positive media coverage
provides an opportunity to buttress public perception and trust. As a countervailing
force against eroding public confidence, news stories about medical heroes,
therapeutic triumphs, and selfless clinicians paint a favorable portrait that
may increase funding or support for patients, facilities, programs, or health
care professionals.1
Negative Aspects of Filming Patient Encounters
There are also potential negative consequences of filming patient-physician
encounters. Filming may violate the privacy of patients and others.27 This can usually be handled with adequate informed
consent. However, patients may feel obliged or compelled to appear at the
behest of those who are in charge of their care and welfare. Filming in the
emergency setting poses particular problems because patients may either lack
capacity to consent or may feel under duress to give consent. Another vulnerable
setting is the operating room, where an unconscious patient undergoing emergency
surgery might not have the opportunity to consent to filming in advance.
Once a film is obtained, there is also the possibility that it could
be used inappropriately. Even in noncommercial filming of patient encounters,
it has been observed that "recordings not only widen the access, they provide
unfiltered detail and potentially last forever."44
In this setting, it was also demonstrated that procedures for protecting patients,
their data, and storing tapes were "clumsy and inadequate."44
An additional concern is that when camera crews are present and caregivers'
attention is drawn to them, it could negatively affect the care rendered to
the patient whose care is being filmed and might also diminish attention to
other patients.45,46
Individual caregivers might also be harmed as a result of commercial
filming. There is concern about medicolegal exposure (though some argue that
a video record is either protective or may lead to faster resolution of a
legal claim when there truly is fault).17 In
addition, staff members have reportedly received unwelcome communications
from prisoners and others who have seen their images on television and become
infatuated with them (H. G. Hern, MD, written communication, March 3, 2001).
Some films also may negatively portray individual facilities, caregivers,
or specialties.4,27 For example,
in the series "Hopkins 24/7," emergency department staff were filmed having
beer and eggs after they were off call, guffawing over a patient who had urinated
on a nurse's leg.27
When problems in the health care delivery system are highlighted, the
effect may taint all medical professionals. As an example, stories that portray
problems with managed health care tend to contain only villains rather than
heroes.17 Although business executives and
insurers may be at the heart of a particular problem, physicians and hospital
administrators may also appear greedy or uncaring. If patients have been exploited
for the purposes of filming, and this is obvious to the public, it might cast
health care professionals in a bad light for allowing this to occur.
Television depiction of "medical miracles" and success stories may inflate
expectations or raise false hopes among patients with various illnesses or
injuries.17,33,47,48
For instance, a myth that has been perpetuated by both fictional programs
and broadcast journalism is that cardiopulmonary resuscitation is usually
successful, when the reality is just the opposite.49
Televised news has been criticized for being too sensational and for
not taking time to provide context for a story.30,33
The adage "if it bleeds it leads" is often followed by the press and is defended
by journalists as appropriate practice.50 It
has also been shown that some local television news programs do not convey
an accurate sense of proportions of the causes of injuries and deaths.51,52 Additionally, risks of acquiring
certain diseases are sometimes exaggerated, needlessly raising public alarm.30,34,53-56
Health care facilities and individual clinicians may also cast a false
impression of their success rates or may claim or imply advantages over others
that have not been proved. This may occur either purposely or inadvertently.57 Indeed, selection of a particular practitioner or
institution to be featured in a news story may enhance credibility and create
an appearance of superior performance that is unwarranted.
Patients who are being filmed may be less forthcoming and honest with
their physicians than they might otherwise be, since people modify their behavior
according to whom, if anyone, is watching.36-38,44,58
Finally, the presence of camera crews in public areas may deter some patients
from seeking care in that location, especially in the emergency department.
In fact, the Joint Commission on the Accreditation of Healthcare Organization's
(JCAHO's) standard of posting signage warning that filming is taking place
could have the effect of deterring patients even before they receive a medical
examination. This is similar to the concern that has been raised about mandatory
reporting laws deterring patients from seeking care in emergency departments,
although measuring the actual number of patients deterred in either circumstance
is difficult.59-62
One study63 that surveyed patients immediately
after they had been treated in a county hospital emergency department where
television filming had taken place found that 12.5% of filmed patients and
4% of all patients surveyed were less willing to return to the same emergency
department for care. It is unknown how many patients actually left or avoided
the facility because of the presence of cameras. However, most of these patients
(71% of filmed patients and 88% of all patients) responded that filming would
have no effect on their willingness to return for care; 17% of filmed patients
and 9% of all patients said that filming would actually increase their willingness
to return to that emergency department for care.
The right to privacy is at the center of the ethical debate regarding
the commercial filming of patient encounters.5-7,64
Privacy refers to "a state of physical or informational inaccessibility" where
the access is controlled by the individual who enjoys the right of privacy.65
The duty to protect patients' rights to privacy is well recognized in
health care. A patient's right to privacy can only be violated when there
is an overriding moral or legal duty to protect the welfare of that individual
patient or other members of society.66-71
Yet, even in a noncommercial arena in which patient interactions were filmed,
it was observed that "the richness of the data tended to obscure the importance
of . . . privacy."44 In filming of patient
care activities, the journalist's duty to inform the public may run counter
to the patient's right to privacy.
To preserve patients' rights to control their privacy during filming,
a priority is to obtain informed consent from an individual with intact decisional
capacity under conditions of nonduress. Under informed consent, patients may
accept a certain risk, usually in exchange for some hoped for benefit, but
it is not clear whether patients always understand the risks and consequences
of filming and freely agree to accept them.44
In addition, written and oral explanations of filming may be vague or uninformative.44
One prospective study using a standardized test of cognitive function
demonstrated that 32% of patients who are acutely ill with myocardial infarction
had impaired capacity to give consent for participation in emergency medical
research.72 This may also be true for consent
to film, especially in emergency situations. Patients or relatives of those
who are distraught might also be unable to appreciate the ramifications of
ever-present cameras and might not appreciate that filming may not be in their
best interests.27
Advanced consent for filming is not always possible in settings such
as the emergency department. In such situations, some producers and hospitals
have taken the approach of filming without consent and not using the film
if consent is later withheld by patients or their surrogate.6
The problem with this approach is that by the time consent is sought, the
patient's privacy has already been violated by the film crew and others that
have not been authorized by the patient to be present.5-7
Some have defended this practice as comparable with deferred consent for research
in the emergency setting, although drawing such an analogy appears questionable.4,65,73
Surrogates are supposed to make medically necessary decisions that are
in the best interest of the patient.10 Accordingly,
consent from a surrogate decision maker for filming is not ethically appropriate,
because filming cannot benefit the patient medically and has the potential
to cause harm to the patient.10 A possible
exception exists if the person in question is permanently or indefinitely
incompetent. Ideally, this exception would only be invoked if the surrogate
is reasonably certain as to what the patient would want.
Patients undergoing care can be viewed as being of inferior rank in
a "status relationship."74 In research, such
relationships have resulted in calls for bans on recruitment of students or
others in positions subordinate to the researcher.74
This raises the question of whether physicians and nurses should ever be involved
with securing consent for filming. In any event, when seeking permission to
film patients, it should be made clear that patient care will not be affected,
regardless of whether they consent to participate.1
Concerns about autonomy and consent to intrusion on privacy might best
be addressed by examining patient expectations and desires regarding filming.
Unfortunately, there is a paucity of research into patients' expectations
regarding their privacy in general and filming in particular.70,75
Recently, patient and staff attitudes toward commercial filming were assessed
in an emergency department of a county teaching hospital during the filming
of a reality-based television program during several weeks. Rodriguez et al63 approached a convenience sample of 293 patients,
39 physicians, and 39 nurses. Patients were asked if they had noticed the
presence of film crews. Those patients (n = 80), physicians, and nurses who
had noticed the film crews were then surveyed about their attitudes toward
being filmed. Of the 293 patients, 73% (n = 213) indicated that they had not
been aware that filming was taking place. Of the 27% (n = 80) who were aware
of the filming, 61 reported that the filming had invaded their privacy "not
too much" or "not at all," and 19 reported that their privacy had been "somewhat"
or "very much" invaded.
The principles of nonmaleficence and beneficence obligate health professionals
to minimize harms and maximize benefits to patients.65,76
In addition to promoting the public's "right to know," filming may provide
benefits to individual patients who genuinely desire to be filmed; however,
these goods do not outweigh the potential burdens of unwanted exposure and
intrusion on privacy resulting from aggressive filming practice. Unfettered
filming undermines patient dignity, societal trust of the health care system,
and the perceived safety of the health care setting. This could result in
a loss of professionalism, a barrier to care, and patient unwillingness to
disclose information to clinicians.
In addition, filming for commercial purposes may exploit patients by
appealing to a desire for fame or by offering financial incentives. Financial
incentives may exploit a patient's disadvantaged economic situation and may
not be commensurate with the value that accrues to the producers of the program
being filmed.27,44
Although some argue that filming patient encounters is justified because,
on balance, there is a societal benefit, appeals to public beneficence fail
to adequately account for principles of fairness or justice.64
Under an egalitarian conception of justice, the relative social benefits and
burdens of a policy or program should be distributed fairly and should not
confer morally arbitrary advantages on some persons at the expense of others.77 Extrapolating this notion of fairness to commercial
filming in health care, the principle of justice would presume that public
education should not be at the expense of those who, through no real fault
of their own, find themselves exposed before a camera.78
Since acutely ill and injured individuals are generally not responsible for
their plight, they should not be exploited, exposed, or denied their rights
to privacy as a result of their illness. Thus, justice would favor the privacy
rights of patients over the interests of nonpatients to be informed, and filming
without prior and appropriate consent would be proscribed.
The right to privacy is not specifically articulated in the US Constitution.79 The origin of the legal term right
to privacy is attributed to Warren and Brandeis, who, in 1890, argued
that the right to privacy is derived from the fundamental rights of life,
liberty, and property and concluded that this amounted to "the right to be
let alone."80 In a 1928 case, Justice Brandeis
wrote, "the right to be let alone—[is] the most comprehensive of rights
and the most valued by civilized men. To protect that right, every unjustifiable
intrusion by the government upon the privacy of the individual, whatever the
means employed, must be deemed a violation of the Fourth Amendment."81
In 1965, in Griswold v Connecticut, a contraception
case, the US Supreme Court identified a zone of privacy that is protected
from intrusion by the state.82 In this and
subsequent decisions, the US Supreme Court found that, although the right
of privacy was not explicitly identified in the Bill of Rights, the right
arose from the penumbra of the First, Third, Fourth, Fifth, Ninth, and Fourteenth
Amendments to the US Constitution. In other words, a right to privacy exists
under the US Constitution because it is implied by so many other amendments.65 It should be noted, however, that the constitutional
right to privacy applies only to the protection of individuals from governmental
intrusion.
Private rights of action (other than contract claims) that form the
bases of civil actions (torts) are established at the state level by statute
or judicial common law and must not interfere with any federal constitutional
right. An influential article published in 1960 by Prosser83
largely shaped today's tort laws involving invasion of privacy. Among the
rights of action delineated was the "intrusion upon a person's seclusion,
solitude, or private affairs." For this claim to succeed, several conditions
must be met: (1) the intrusion must be into a private aspect of a person's
life; (2) the intrusion must be deliberate; and (3) the intrusion must be
highly objectionable to the sensibilities of the average person.84
These circumstances may be extant if a patient has not consented in advance
to being videotaped in an ambulance, emergency department, hospital room,
or other health care setting.84,85
Although the privacy rights of individuals are not explicitly mentioned
in the US Constitution, the First Amendment explicitly protects freedom of
the press. Thus, the right of protection of individual's privacy from journalists
is limited and generally does not extend to public figures. Nonetheless, certain
restrictions on the press do apply. For example, in Dietman
v Time, Inc,86 the US Court of Appeals
for the Ninth Circuit held that, "The First Amendment has never been construed
to accord newsmen immunity from torts or crimes committed during the course
of newsgathering. The First Amendment is not a license to trespass, to steal,
or to intrude by electronic means into the precincts of another's home or
office."
In 1986, Miller v NBC87
specifically dealt with the issue of a television crew entering a private
home during a "ride-along" with paramedics. In this case, the family of a
man who was filmed during a failed attempt at cardiopulmonary resuscitation
sued NBC news for invasion of privacy under an intrusion claim and argued
that such an activity was "highly offensive to a reasonable person" (the legal
test that must be met for such a claim to succeed). The family further alleged
trespass and infliction of emotional distress. The trial court initially denied
all 3 claims. However, in an opinion that reversed the lower court, the US
Court of Appeals noted, "There is little California case law . . . to assist
us in making this determination, probably because even today most individuals
not acting in some clearly identified official capacity do not go into private
homes without the consent of those living there . . . not only do widely held
notions of decency preclude it, but most individuals understand that to do
so is either a tort, a crime, or both."87 Following
this ruling, the television network entered into a confidential settlement
agreement with the family.
In 1998, Shulman v Group W Productions, Inc88 involved an action for invasion of privacy brought
by a patient against a television production company that surreptitiously
videotaped, voice recorded, and broadcast a documentary showing her rescue
from a trauma scene. The California State Supreme Court again ruled that the
case could proceed on an intrusion claim, resulting in an out-of-court settlement.
Also in 1998, the US Supreme Court ruled in Wilson
v Lane89 that reporters who accompanied
police into a suspect's home violated his privacy rights, and as a result,
a lawsuit could be brought. Although this case does not address filming of
medical care, it does establish limits, by the highest court of the land,
on filming of reality-based television programs.
Standards and Recommendations
The JCAHO first addressed the issue of filming in hospitals in July
2000.8 Two standards clarifications have subsequently
been issued.9,10 The JCAHO frames
the issue as a "classic ethical conflict" between 2 competing goals: "informing
the public to better understand health care" and "protecting the privacy of
individual patients," and recommends that health care organizations use their
usual mechanisms to resolve such dilemmas (eg, ethics committee).
Five specific questions are addressed in the JCAHO standards clarification,
the answers to which are summarized in . These are the minimal standards
to which health care organizations must adhere to avoid a citation at the
time of accreditation. Individual organizations may choose to exceed them
as they set their own standards, especially if they involve ethics committees,
which ideally are structured to include community members.
The Council on Ethical and Judicial Affairs of the American Medical
Association adopted more restrictive guidelines than the JCAHO standards when
it reported a set of recommendations entitled "Filming Patients in Health
Care Settings" that was adopted by the American Medical Association House
of Delegates in 2001 (BOX 2).11 Filming without
prior consent is specifically proscribed as is the use of surrogates to grant
consent for filming in all but exceptional cases. Additional rights and safeguards
are recommended for patients and staff members, and the role of physicians
in the process of filming is specifically addressed.
Recommendations for Commercial Filming in Hospitals
The following are suggested recommendations for commerical filming of
patient care activities based on previously released standards and recommendations,
and the ethical and legal principles elucidated herein.
General policies and specific requests for filming should be approved
by hospital ethics committees, which should include physicians and community
members.1,11
Filming should only commence after valid informed consent has
been obtained from the patient.1,11
The patient should be made aware of exactly who will be present and what to
expect during the recording.
Consent should be obtained from patients who are awake and alert
enough to understand the consequences of their actions. Patients who are severely
ill or injured, intoxicated, psychologically disturbed, or experiencing severe
pain, anguish, or grief frequently lack capacity to give consent and should
not be approached.
Consent should not be obtained under conditions of duress or when
the patient might feel compelled to consent out of fear or gratitude.1 Individuals in "status relationships," such as students,
should not be approached.75
Deferred consent is not acceptable, since the patient's privacy
will already have been violated before this can be obtained.5
Surrogate decision makers are generally unacceptable in this situation.
A possible exception exists if the person in question is permanently or indefinitely
incompetent.11
Consent should be obtained by a disinterested third party rather
than by a member of the media, film crew, or production team.5,11,32,44
Ideally, a representative of the hospital's public relations department
who is familiar with the organization's policies should supervise the consent
process and be present during filming.
There must not be any discrimination, except for medical reasons,
as to who is or is not asked to participate.5
Payment for airing a taped segment should represent fair compensation
that is established before taping commences. Payments should not be so great
as to be coercive and should not be an inducement for the right to broadcast
vulnerable individuals.44
Physicians and others in a position to recruit patients for filming
should not be compensated directly for their participation.11
Patients have a right to view a tape in which they appear before
its airing. They may withdraw their consent for use of the tape and/or order
the portion containing their image destroyed up until a reasonable time before
it is broadcast.11
Cameras can be permitted in public areas, such as corridors, where
they could view general activities that the average public might view. (This
is similar to the placement of security cameras in public spaces where they
are permitted in corridors or open work areas but not in offices, conference
rooms, or locker rooms because there is a reasonable expectation of privacy
in the latter but not the former.) These cameras should not film patients
and should not be allowed to zoom for close-ups that might identify individual
subjects without their permission.5
Appropriate signage advising of the presence of the cameras should
be posted.1,8-10
Individual staff members should be given the option of whether
to appear on camera and must consent before they are filmed.1
The right to refuse should be reflected in the hospital's human resources
policies.
During filming, efforts should be made to minimize disruption
of other patient care activities and to avoid distracting caregivers from
their duties to other patients. Extra personnel should be scheduled as necessary
if caregivers will be preoccupied with the filming.
Patients who are being filmed have the right to have the filming
stopped at any time, and the film crew may be asked to leave the area.11 Caregivers who feel that medical care is being jeopardized
can also request that filming be halted.
Televised reports should not overstate the success of a particular
therapy or procedure or imply unique skills or abilities of individual practitioners
or facilities unless such claims can be justified.
These recommendations would preclude filming in emergency departments
of most urgent patient-physician interactions (eg, trauma, cardiopulmonary
resuscitation) and of children and others deemed vulnerable.
The simultaneous goals of educating and informing the public and protecting
patient privacy while commercially filming patient encounters can be achieved
if meticulous attention is paid to the rights of patients, especially the
most vulnerable.
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