On a chilly afternoon many years ago while traveling in Minsk, Belarus my spouse took a photo of me standing in front of the American Embassy. What started as an innocent photo opportunity ended with us being detained at gunpoint by two countries for almost an hour while they sorted out the rules.
Image now that a similar thing happens at the doctor’s office for simply taking a picture of your son after seeing his audiologist. Mandi Kay Wilson often takes pictures of her son’s appointments because she uses the images on gofundme.com to raise money for her son’s expensive hearing aids. And just like my photo from Belarus, taking a picture that day resulted in her being detained and security ordering her to turn over her phone. Officially Ms. Wilson was told she was being detained because she violated HIPAA (Health Insurance Portability and Accountability Act) but like my experience, it was a mistake by the authorities rather than a violation of law that led to the unfortunate situation. It is important to note that even if Ms. Wilson had been guilty of violating HIPAA in this situation, there would not be grounds for arrest or detention.
According to Ms. Wilson, the incident began when her son’s doctor got in her face and accused her of posting an image of his daughter on Facebook, which if true is also not a HIPAA violation. However, Wilson says the image was a picture of her son and in the background was a small frame with the doctor’s daughter inside. As a result of taking a new picture of her son Ms. Wilson was told she was being “fired” as a patient and could be taken to jail.
A Few Key Photography Rules to Know:
- When in public spaces where you are lawfully present you have the right to photograph anything that is in plain sight.
- When you are on private property, the property owner may set rules about the taking of photographs. If you disobey the property owner’s rules, they can order you off their property and have you arrested for trespassing if you do not comply.
- Law Enforcement may not confiscate or demand to view your digital photographs or video without a warrant.
- Law Enforcement, Military Personnel or Security may not delete your photographs or video under any circumstances. Doing so could result in a lawsuit as numerous police departments and even the military have discovered.
- Police officers may legitimately order citizens to cease activities that are truly interfering with legitimate law enforcement operations.
This incident ended with Mercy Hospital agreeing to educate their staff and review their policies about taking pictures on their campus. This situation emphasizes the need for education for all staff and to ensure the digital policies remain up to date. Patients likewise should know their rights and inquire about policies before taking that snap shot.
One final note, ONLY Individuals, organizations, and agencies that meet the definition of a covered entity under HIPAA must comply with the Rules. Covered entities include Healthcare Providers, Health Plans, Clearinghouses and their related entities. Individual patients are NOT required to comply and as such, based on facts Ms. Wilson provided, she did not violate HIPAA. Ms. Wilson had the protections of HIPAA but not the obligations.
Whether you believe your rights have been violated for taking a photo or you want to be sure your organization’s training is up to date Siddel Law can help. A well-drafted, publicized policy addressing HIPAA – Photographing, Video Recording, Audio Recording, and Other Imaging of Patients, Visitors and Employees is essential to minimizing risk in your organization.
Disclaimer: This article discusses general legal issues, but it does not constitute legal advice. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction. Siddel Law expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.