Unauthorized Photograph of Resident Violates Privacy and Dignity
Penalty
Summary
A resident’s right to privacy and dignity was violated when a CNA took a photograph of the resident’s naked back without consent while providing a bed bath. The resident had been admitted with multiple diagnoses including paraplegia, seizure disorder, severe protein-calorie malnutrition, hypertension, insomnia, amaurosis fugax, dilated cardiomyopathy, and anxiety disorder. A quarterly MDS showed the resident had a BIMS score of 15, indicating intact cognition, and was dependent on staff for all ADLs, including showering, bathing, and repositioning in bed. The resident later reported that no one had asked permission to take the picture and that he was upset when he learned of it. Staff interviews confirmed that the CNA used a personal cell phone to take the picture in a resident care area, contrary to facility policy. CNA #233 admitted taking the picture of the resident’s naked back without the resident’s knowledge during a bed bath. Another CNA stated that staff were not to be on their cell phones in patient care areas and that no pictures were to be taken with personal cell phones. A different CNA reported that only the wound nurse should take resident pictures, and only with a facility phone for wound measurement purposes. These statements aligned with written facility policies that prohibited use of personal electronic devices in resident areas and strictly prohibited taking pictures or videos in any resident area using personal cell phones. Further interviews revealed that the photograph was shared beyond its original capture. An LPN reported that the CNA showed her the picture of the resident’s back on the CNA’s personal cell phone when the LPN returned to the unit. Another LPN stated that the CNA told her she had taken a picture of the resident’s back and that the picture was sent to another LPN, who then sent it to the resident’s mother. The resident reported that he first became aware of the picture when his father called and then texted him the image of his naked back, at which point he expressed that he was not happy the picture had been taken without his permission. The ADON acknowledged that a CNA had taken a picture of the resident’s back and that it was sent to a nurse who then sent it to the resident’s parents, and noted that the resident was upset because he was cognitively intact and able to make his own decisions. Review of facility policies and a CMS memorandum confirmed that taking photographs of a resident without consent violates resident rights to privacy and confidentiality.
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