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The snapshot: Recording a thousand words' worth of evidence

October 1, 2007
by MICHAEL AMO, MS, CNHA, KENNETH T. JONES, and NIKI LEE ROWE, MA, CALA, LMHC
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Part one of a two-part series on the role of photography in facility investigations

Documenting evidence is essential to any investigation. Photography, a powerful and yet convenient form of documentation, allows an investigator to capture the essence of a scene and record large or immovable objects at the scene. Clearly, using photography in long-term care (LTC) internal investigations is a preferred form of documentation.

Recently, television shows such as CSI have brought the term forensic into the public vernacular. The word forensic is defined as “relating to, used in, or appropriate for courts of law or for public discussion or argumentation” (American Heritage College Dictionary, 4th ed.).

Forensic photographers learn and perfect principles and skills for obtaining legally sufficient photographs of scenes and evidence. A good working knowledge of the principles of forensic photography will benefit the LTC detective, especially if investigative results are ever brought to arbitration or courts of law. Even without advanced formal training, LTC investigators who possess basic photographic knowledge and follow simple guidelines can enhance efforts to obtain appropriate and useful photographs for internal inquiries.

State survey agencies already have the green light for use of photography during investigations. In September 2006, the Centers for Medicare & Medicaid Services (CMS) issued some basic principles for state survey agencies to follow when using photography. While CMS was clear that photography of the survey process is not required, it said certain principles should be followed if it is used:

  • Request written permission before photographing a resident.

  • Get a complete set of photographs.

  • Document the photographs.

These principles integrate well with the principles of investigative protocol as laid out in this two-part series, which will:

  • Explore the use of photography during investigations.

  • Describe ways to document photographic evidence.

  • Offer practical advice for selecting effective, basic, inexpensive equipment; taking photographs of the residents and scene; and retaining photographic records.

Cautions When Taking Photographs

Photographs may help with understanding an event, clarifying the facts, and drawing a conclusion. Use them with caution, though. Clearly, regulations and common sense require resident respect and protection. The investigator must be sensitive to the resident's feelings and privacy when photographing the scene. Remember, the facility is the resident's home and it, along with personal belongings, must be respected. If the resident has an injury, written permission must be obtained from the resident, family member, or surrogate before taking personal photographs of the resident's body. These and other issues regarding photographs should have written policies that address the following issues:

  • When to use photography during an investigation;

  • What protocols, qualifications and training are required to take photographs during an investigation;

  • When family member or surrogate permission is required;

  • How to handle and document a refusal by a resident, family member, or surrogate to allow photographs to be taken; and

  • What protocols should be used when photographing parts of a resident's body during an investigation.

Underlying the need to request resident permission before taking photographs are two important principles: resident rights and informed consent. As participants in the Medicare and Medicaid programs, LTC facilities are required to ensure that resident rights are protected. Even though our goal in performing the inquiry is to help and serve the resident, we must do this while considering the right to privacy and respect.

The exact standards necessary to satisfy informed consent for taking photographs are beyond the scope of this article. Consult your facility's legal counsel before establishing the aforementioned policies and procedures.

Reasons to Use Photographs

The following are a few of the powerful ways photographs can enhance the understanding of evidence:

  • Photographs of the scene will allow the investigator to understand the context in which the event occurred, including furniture location, safety conditions in the area, lighting, and any unusual circumstances present, e.g., inappropriate use of equipment or placement of furniture.

  • Photographs of injuries can indicate the severity of the injury and suggest how the injury was created; e.g., an open hand slap, or a bruise that was present before the event.

  • Photographs can reveal evidence previously overlooked at a scene, e.g., a wall clock documenting time, presence of a pen (left by a nurse) on an end table.

  • Photographs, taken using proper procedures and depicting the scene accurately, could become key evidence in a future legal or disciplinary case.

Investigations generated within healthcare facilities are usually designed to establish compliance with internal controls and state and federal regulations, as well as to identify liability. Documenting such events with properly taken and secured photographs enhances the facility's professionalism and helps memorialize the actual event in a manner that is, in many cases, superior to other forms of evidence, including witness statements.

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