Patient Privacy During Inpatient Psychiatric Treatment
PDF Version of OQA 06-025
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Patient Privacy During Inpatient Psychiatric Treatment
The purpose of this memo is to provide DHFS guidance to providers of
psychiatric inpatient (residential) services about patients' right to
privacy in relation to audio/video monitoring.
APPLICABLE REGULATIONS
Regulations relevant to this issue include both the federal hospital
Medicare Conditions of Participation found at 42
CFR 482.13,
(exit DHFS) and the State law and administrative code governing patient
rights found in s. 51.61(1)(o), Stats., and Chapter
HFS 94. (exit DHFS)
The applicable federal regulations are:
CFR 482.13(c) Standard: "The hospital
must ensure that specific privacy and safety requirements are met."
CFR 482.13(c)(1): "The patient has the
right to personal privacy."
The federal Interpretive Guidelines discuss how these regulations
are applied as follows:
"The underlying principle of this
requirement is the patient's basic right to respect, dignity, and comfort. 'The right to
personal privacy' includes at a minimum, that patients have privacy during
personal hygiene activities (e.g., toileting, bathing, dressing),
during medical/nursing treatments, and when requested as appropriate . ..
"People not involved in the care of the
patient should not be present without his/her consent while he/she is being
examined or treated, nor should video or other electronic
monitoring/recording methods be used while he/she is being examined without
his/her consent. If an individual requires assistance during
toileting, bathing, and other personal hygiene activities, staff should assist,
giving utmost attention to the individual's need for privacy. Privacy
should be afforded when the MD/DO or other staff visits the patient to
discuss clinical care issues or conduct any examination.
"Additionally, audio/video monitoring
(does not include recording) patients in medical-surgical intensive-care type
units would not be considered violating the patient's privacy as
long as patients/patient representatives are aware of the monitoring and
the monitors or speakers are located so that the monitor screens
are not visible or where speakers are not audible to visitors or the
public. Staff must take appropriate precautions to provide patient
privacy while patients are toileting, bathing, or being examined.
"A patient's right to privacy may be
limited in situations where a person must be continuously observed, such as
when restrained or in seclusion when immediate and serious risk to harm
self (such as when the patient is under suicide precautions or
special observation status) or others exists. In most situations,
security cameras in non-patient care areas such as stairwells, public
waiting areas, outdoor areas, entrances, etc., are not generally
affected by this requirements [sic]."
Relevant State regulations include:
s. 51.61(1)(e), Wis. Stats.
"Each patient shall . . . have the
right to the least restrictive conditions necessary to achieve the purposes of
admission, commitment or placement, except in the case of a patient
who is admitted or transferred under s. 51.35(3) or 51.37 or
under ch. 971 or 975."
HFS 94.07 Least restrictive treatment
and conditions.
HFS 94.07(1): "Except in the case of a
patient who is admitted or transferred under s. 51.35 (3) or 51.37,
Stats., or under ch. 971 or 975, Stats., each patient shall be provided
the least restrictive treatment and conditions which allow the
maximum amount of personal and physical freedom in accordance
with s. 51.61 (1) (e), Stats., and this section."
s. 51.61(1)(o), Wis. Stats.
"Each patient shall . . . Except as
otherwise provided, have a right not to be filmed or taped, unless the patient
signs an informed and voluntary consent which specifically
authorizes a named individual or group to film or tape the patient for a
particular purpose or project during a specified time period. The patient
may specify in such consent periods during which, or situations
in which, the patient may not be filmed or taped. If a patient is
legally incompetent, such consent shall be granted on behalf of the
patient by the patient's guardian.
A patient in a ... facility under §
980.065, may be filmed or taped for security purposes without the patient's
consent, except that such a patient may not be filmed in patient
bedrooms or bathrooms for any purpose without the patient's
consent."
HFS 94.18 Filming and taping.
HFS 94.18(1): "No patient may be
recorded, photographed, or filmed for any purpose except as allowed under s.
51.61 (1) (o), Stats., and this section."
HFS 94.18(2): "A photograph may be
taken of a patient without the patient's informed consent only for the
purpose of including the photograph in the patient's treatment
record.
HFS 94.18(3): "The informed consent
document shall specify that the subject patient may view the photograph or
film or hear the recording prior to any release and that the patient
may withdraw informed consent after viewing or hearing the
material."
s. 51.61(1)(m), Wis. Stats.
"Each patient shall . . . Have a right
to a humane... physical environment within the hospital facilities.
These facilities shall be designed to afford patients with comfort
and safety, to promote dignity and ensure privacy.
Facilities shall also be designed to make a
positive contribution to the effective attainment of the treatment
goals of the hospital."
HFS 94.24 Humane psychological and
physical environment.
HFS 94.24(1): "CLEAN, SAFE AND HUMANE
ENVIRONMENT. Treatment facilities shall provide patients
with a clean, safe and humane environment as required under s.
51.61 (1) (m), Stats., and this section."
HFS 94.24(2): COMFORT, SAFETY AND
RESPECT.
HFS 94.24(2)(a): "Staff shall take
reasonable steps to ensure the physical safety of all patients."
HFS 94.24(2)(b): "Each patient
shall be treated with respect and with recognition of the patient's dignity by all
employees of the service provider and by all licensed, certified,
registered or permitted providers of health care with whom the
patient comes in contact."
HFS 94.24(3): SOCIAL, RECREATIONAL AND
LEISURE TIME ACTIVITIES
HFS 94.24(3)(h): "Patients have a
right to be free from having arbitrary decisions made about them. To be
non-arbitrary, a decision about a client shall be rationally based
upon a legitimate treatment, management or security interest."
Given this background of regulations, we now move to discussion of
potential scenarios.
NO CAMERAS IN CERTAIN AREAS
Neither cameras with film or tape nor audio/visual monitoring without
film or tape are permitted in patient bathrooms or during patient physical
examination or physical treatments. Hospitals must assure that a
sufficient number of staff is present for patients who need assistance in
toileting and bathing, and that sufficient staff are present to assure
safety during physical examination or physical treatments.
CAMERAS PERMISSIBLE IN CERTAIN AREAS
Monitoring (without film or tape) of common areas such as hallways,
stairwells, and common areas on the unit is permitted. Cameras may both
monitor and tape or film exit doors and exterior public areas such as
parking lots.
CAMERAS IN BEDROOMS UNDER INDIVIDUALIZED CONDITIONS
Monitoring of patient bedrooms can be conducted under limited,
individualized conditions when it is necessary to protect the health and
safety of the patient. Each hospital should have policies and procedures
to assure that when patient bedrooms are monitored (without film or tape),
such visual or audio monitoring is done in accordance with individual
patient need. A hospital may develop separate policies and procedures for
audio monitoring vs. video monitoring, bearing in mind that both
modalities are intrusive to some extent.
Ongoing patient assessment is necessary to determine need for
monitoring. Potential reasons for such monitoring include acute
detoxification, physical impairment such as documented risk of falling,
and suicide precautions based on current assessment.
Assessment of a need for monitoring in a patient's bedroom should be
reflected in the patient's treatment plan. The patient should be aware of
the monitoring. When it is possible, the patient's consent should be
obtained. Monitoring should be discontinued when the need is no longer
present. If the patient is in a double room with a roommate who does not
require monitoring, staff should either obtain consent of the roommate for
whom there is no documented need for monitoring, or relocate one of the
patients.
The monitor screen or speaker must be placed in an area not visible or
audible to other patients or visitors, and staff should be assigned to the
monitor to assure that the conditions being guarded against are actually
observed.
Cultivation of a therapeutic relationship between the patient and staff
members may obviate the need for mechanical surveillance. From both a
treatment perspective and a regulatory perspective, camera monitoring is
no substitute for personal interactions and relationships with patients.
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