Lawmaker Slams Veterans Administration for 'Big Brother' Surveillance

Bryant Jordan reports:

The chairman of the House Veterans Affairs Committee has filed legislation requiring Department of Veterans Affairs’ hospital personnel to have the consent of a patient or other authorized party before setting up surveillance cameras in the veteran’s room.

Rep. Jeff Miller, R-Fla., said in a statement Thursday his “Veterans Privacy Act” is a response to a Tampa VA hospital’s admission it installed a camera within a smoke detector in the room of a brain-damaged patient without informing his family.

The VA’s Office of the Inspector General, in a just-released report, found the hospital’s actions “reasonable” because it was intended to discover “who or what was interfering with nursing care of the patient.” The IG also found that such surveillance cameras are widely used across the VA healthcare system.

But Miller said the actions of the James A. Haley Veterans’ Hospital in Tampa were bizarre and outrageous.

“To think that some VA employees actually thought it a good idea to covertly record a patient with a video camera disguised as a smoke detector really just boggles the mind,” Miller said in the statement.

Under Miller’s law, exceptions to the patient- or family member-consent requirement include a determination by a doctor or psychologist that the recording is medically necessary, a legal warrant is obtained, or the camera is in a public setting where there is no expectation of privacy.

And apparently, that’s precisely what happened in this case: the hospital determined that the covert surveillance was crucial to determining who was interfering with the patient’s care.

Read more on The OIG’s report can be found here, and the text of Rep. Miller’s bill can be found here.

I agree that the hospital’s should have a public notice informing families and visitors that they might be under surveillance while in patients’ rooms, but otherwise, I wonder whether Rep. Miller has over-reacted to something that has been going on for years outside the VA system and that may actually have some justification.

The covert surveillance issue first came to my attention about 20 years ago when I learned that some hospitals were covertly surveilling patients’ rooms in cases of suspected Munchausen Syndrome by Proxy, a factitious disorder associated with child abuse (and occasionally adult abuse) by an attention-seeking parent or family member. At the time, there were a number of discussions of the ethical and legal issues raised by such surveillance. Some argued that covert surveillance is a medical diagnostic tool,  finding that it enabled medical personnel to diagnose or confirm diagnosis in over half of suspected cases. In some cases, covert surveillance likely saved children’s lives and helped law enforcement prosecute abusive parents. But it’s the latter aspect that raises even more legal issues, as now the Fourth Amendment, state wiretapping laws (in non-federal facilities), and “reasonable expectations of privacy” come into play. These issues are too complex for me to address in this particular blog post, but Rep. Miller’s bill  should be carefully scrutinized for both its medico-ethical implications, as well as what HIPAA requires, and the Fourth Amendment. Even though the case that inspired his bill does not necessarily involve MSBP, the issues – and the stakes – seem comparable.

It would be an interesting Congressional hearing to sit in on.

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