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A Nurse Took A Photo Of My Naked Body While I Was Sedated

In NSW, this is not considered a criminal offence.

01/07/2016 11:54 AM AEST | Updated 15/07/2016 12:56 PM AEST
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Most of us will have to undergo an operation at some time in our lives. In December 2014, I was having gynaecological surgery to check for cancer. Before I was sedated there were four people in the room -- the nurse, two attendants and the anaesthetist.

After I woke up in the recovery suite, I saw a nurse showing another nurse something on a mobile phone. The nursing colleague was unimpressed with what she was being shown and was very angry. I wondered what that phone was doing in the recovery room, but did not think about it again.

Five weeks later, my surgeon rang to tell me that while I did not have cancer, something else had happened during the procedure. Shortly after I was sedated, the nurse and the attendants positioned me in stirrups. My legs were wide open and apparently this is when the nurse took out her personal smartphone and took an explicit photo of my genitals. No one had given permission for this image to be taken. In fact, I expected a heightened sense of privacy given my body's position.

The nurse had shared the image with her colleagues and two nurses had, thankfully, reported her to hospital executives. Apparently she was dismissed immediately.

The hospital made contact with me shortly after the phone call from my surgeon, explaining that their employee had gone rogue and that they could not ever have fathomed any of their staff carrying out such an act.

I asked for her name. The hospital response was that she was entitled to her privacy and they would not divulge.

I asked why she had done this. I was told that the nurse in question could give no explanation.

I asked the hospital if they had checked the phone to make sure the image had been deleted. They responded that asking the nurse to show them her personal smartphone would have been a breach of employee privacy, and that as she had left under such circumstances it was unlikely she would have allowed it anyway.

I was terrified. I knew just how fast that image could get onto the internet and make life as I knew it forever changed. But surely the police could help me gain control of the image.

I rang NSW Police, filed a statement and waited. The two nurses who made the complaint were interviewed but not the violating nurse. NSW Police told me that there was no applicable law in NSW that covered non-sexualised voyeurism offences. I had no legal recourse whatsoever. Had the incident occurred in Victoria or Queensland, then there would have been an applicable law. My violation would have been treated as a criminal matter.

The police could not even approach the violator and ask her to hand over the phone for forensic analysis.

I begged the hospital to write to the nurse and ask her to offer the phone over to forensics. They eventually sent two letters but received no reply. After months of waiting I was officially told the nurse's details and told to write to her myself.

Once I had an actual name I was able to make statements and submit complaints with the NSW Nursing Midwifery Board, which meant that the Health Care Complaints Commission was notified.

All I wanted was to get hold of the smartphone and make sure that image was deleted. The complaint process took three months. The board was also unable to ask their member to deliver up the smartphone, nor was I allowed to know why this had happened to me.

Surely this violation of patient trust and serious invasion of privacy would have been enough to have her deregistered. The board explained to me that the offence was not deemed serious enough to cancel her nursing registration. The nurse had not committed a criminal offence. She was required to complete a reflection activity and meet with a board to explain her actions. This nurse was then allowed to continue working unsupervised.

By August 2015 I was in despair. Together with my solicitor we wrote asking the nurse to deliver the phone. The mere mention of supreme court action must have got her thinking that I was never going to give up.

Finally, in September, the nurse delivered the phone to the forensic analyst who was able to retrieve the image. He found the image had been deleted four days after it was taken -- metadata tells all. I actually had to go in and view the image to make sure it was me.

By this stage, immense anger had enveloped me and I was unable to continue working. Nothing I had tried was going to give me any justice. Sure I had contained the image -- but it had taken me 10 months.

My solicitor made me aware of the NSW Parliamentary inquiry into remedies for the serious invasions of privacy. I made a submission and asked to give testimony "in camera" at the hearings. Sitting through the days, reading all the other submissions, I grew even angrier. I learned that there had been three law reform reports, paid for by taxpayers, that had been presented to both NSW and Commonwealth governments and that the recommendations had been ignored. Nothing had been done to update privacy laws either in NSW or Australia. I had no legal recourse because the very law reforms proposed by the ALRC in 2014 (four months before my incident) were never adopted by the NSW or the Commonwealth government.

Dr Elizabeth Coombs, the NSW Privacy Commissioner, was sitting in the audience (of two) on the second day and was able to hear my testimony.

I have grown used to the looks of horror when people hear of my story. But the impact of my testimony that day meant I was able to secure an appointment with the NSW Attorney General Gabrielle Upton. I called upon my local member Dominic Perrottet to help me do this appropriately.

In this meeting, I gave Ms Upton details of another serious privacy breach that had occurred in a nursing home where residents were photographed as part of the so-called 'Genital Friday Club'. Again the nursing staff involved were unable to be pursued criminally and the events are just not deemed serious enough for regulatory bodies to remove professional registrations.

I asked Ms Upton to ensure the seven recommendations advised in the parliamentary report (published in March 2016) are implemented into law. I also asked her to update NSW voyeurism laws so that criminality is attributed to those members of our community who take explicit photos of people when they could reasonably expect to be afforded privacy.

My change.org petition has almost 20,000 signatures. Comments overwhelmingly support my outrage that there is no criminal law in NSW to make it illegal to take a photo of someone's genitals, in circumstances where they could reasonably expect to be afforded privacy, without their consent even if not for the purpose of sexual gratification.

Justice Michael Kirby has been citing my case. He has written a great keynote speech that includes 10 reasons why the NSW Government cannot fail to introduce these laws.

And, of course, changing these laws will eventually filter down into the health regulatory bodies. Hopefully health facilities will make plans to effectively deal with rogue employees.

Advocating for privacy and voyeurism law reform in NSW is helping me find some peace.

*name has been changed.

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