Privacy, liability need consideration when developing security plans
Most hospital administrators would say that safety and security are of paramount importance; however, there are legal challenges that need to be considered when implementing plans to safeguard a facility. For instance, while the utilization of security cameras is pretty routine at this point, other types of active surveillance could raise privacy concerns, according to James Hodge, Jr, JD, LLM, director of the public health law and policy program at Arizona State University in Tempe, AZ.
For instance, Hodge explains that surveillance efforts aimed at pre-screening individuals or assessing who might pose a risk within a population could be problematic. For example, Hodge raises concerns about any hospital attempts to determine whether patients have a history of violence or mental-health-related issues. "That type of pre-screening has actually been done at some hospitals in the United States, but to be sure, it raises all sorts of privacy connotations in relation to health information and mental health data," he says. "Just the sheer nature of what hospital staff may be looking for really does [have] privacy implications."
Even the use of metal detectors and similar security devices can pose legal difficulties in some regions. "Those systems can work to detect potential weaponry, especially guns and other major weapons that can cause mass mortality on a quick basis, but at what cost from a privacy perspective?" says Hodge. "We are willing, as a nation, to accept those costs to enter into the gates at airports. We are willing to accept [these precautions] to enter into courthouses and some other settings. But hospitals are a more free and open environment — not typically one where you would see that sort of intervention used, and yet the threat of active shooters may take us to that day when we have to relax privacy issues."
Hodge adds that hospital administrators need to be cognizant of any changes in gun laws and regulations in their states. He notes that some states, like Georgia for instance, have recently moved to liberalize gun statutes to the point where it is lawful to introduce concealed weapons into hospital settings. Some of these laws are set up in a way that would make it unlawful to use interventions aimed at checking for these weapons.
"This is going to be politically dynamic. You are going [to need to] balance public health and safety against second amendment rights, as espoused by the NRA [National Rifle Association] and others," says Hodge. "But the fact of the matter is in some jurisdictions these gun laws really do allow citizens and others to carry weapons into hospital settings even though there is virtually no purpose for having them in that particular arena."
The reality is that people might be safer from gun violence in a courthouse, a stadium, at a movie theater, and at the airport than if they are in a hospital, says Hodge. "It is just completely antithetical. It should be the case that the one place where you might be free and clear from potential violence that might harm patients would be a health care setting, but that is not the case based on the existing protections in place."
However, while some laws are clearly an obstacle to implementing stronger safety and security measures, other laws are also pushing hospitals to take the risk of an active shooter more seriously, says Hodge. "No hospital is going to be held to some absolute standard that the existence of an active shooter means the hospital is liable. We are not going to judge in a court of law that way," he says. "But when you are aware of a known threat and do very little to nothing to plan, prepare for, and obviate the threat and then you have an active shooter perhaps stepping into the hospital setting, resulting in the deaths or morbidity of potentially dozens of patients, personnel, or visitors — I don’t see a hospital escaping liability under that particular scenario where they have literally failed to plan. It would be disastrous and [hospital administrators] know it."
