Sydney school teacher Breanna (not her real name) checked into a private hospital for routine gynaecological surgery late last year and a few days later, the surgeon rang with the good news that she did not have cancer.

But the doctor from Norwest Private Hospital in Sydney's north-west had another bombshell.

She told Breanna one of the nurses had taken an explicit photo of her while she was under anaesthetic.

"I felt like my world was exploding. I felt I was in great peril that this photo was going to destroy my life, my career and that my son would find out," she said.

But what has made her really angry is that there is little she can do to stop it happening to others.

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A 'serious invasion' of privacy

What has made Breanna really angry is that there is little she can do to stop it happening to others.



In New South Wales, there is no law protecting patients from having similar photos taken.

"I am an information technology teacher. I know how bad it could get and that the photo could have ended up on the internet and being shared," she told the ABC.

"The photo was explicit and left nothing to the imagination."

Under section 91 L of the Crimes Act, it is an offence to photograph or film someone's private parts for the purpose of obtaining, or enabling another person to obtain sexual arousal or sexual gratification.

But that was not the case in this circumstance.

Breanna's lawyer, Fiona McLay from Harris Freidman, said there is a serious gap in NSW criminal law.

"Breanna is genuinely concerned that no other patient suffer a similar indignity," she said.

"The law in NSW needs to brought in line with the law in Victoria and Queensland where it is an offence to take a photo of someone's genitals without their consent, in circumstances where they could reasonably expect to be afforded privacy."

The photo was shown to two other nurses in the recovery room, who alerted hospital management.

New South Wales privacy commissioner Dr Elizabeth Coombs said she was deeply concerned by what she called a "serious invasion" of privacy.

"As privacy commissioner, I think people of New South Wales deserve to have their privacy protected, and have a means to get redress when a serious invasion has occurred," she said.

Nurse still practising without restrictions

The nurse was sacked from Norwest private hospital and her behaviour referred to the Nursing and Midwifery Council of New South Wales.

It found she had "expressed sincere apologies and remorse for her actions, displayed the requisite degree of insight and level of contrition and has taken steps to improve her practice".

Fiona McLay says there is a serious gap in NSW criminal law. ( Fairfax Media: Louise Kennerley )

But the nurse is still practising without restrictions or supervision.

"She now works in another operating theatre in a private hospital in Sydney," Breanna said.

A spokesman for the hospital said it deeply regretted the incident, which was investigated by the hospital executive and the patient's doctor.

"The rogue actions of the nurse were a one-off occurrence in the hospital," a hospital spokesman said.

"The nurse's colleagues, recognising the abhorrent behaviour, followed the hospital's policy and quickly escalated the incident to the hospital executive team."

Breanna is not seeking financial compensation but is disappointed by the hospital's actions.

"The hospital has a clear patient's bill of rights but they haven't done the right thing," she said.

"They should have accessed the phone and ensured that the image was deleted as soon as possible."

The hospital said it offered her support after the incident and that phones and cameras are banned from operating theatres.

But Breanna is frustrated the nurse cannot be charged with a criminal offence.

"I just want to see laws changed so this doesn't happen to any other patients," she said.

Eventually, the nurse agreed to hand over the phone and provide a statutory declaration that the intimate image had been deleted.

The reasons why the nurse took the photo remain unclear.

But Breanna has her suspicions.

"I am a larger woman. To me, it's obvious she took it to make fun of fat people," she said.

Breanna unable to function from stress

Since finding out about the explicit photo, the stress has meant Breanna has been unable to function properly.

She has had to temporarily give up her job as a school teacher.

On the day of her operation, she made small talk with the nurse who took the photo, before going under the anaesthetic.

"She told me she lived in the same area as I do and that she had school-aged kids. So I was worried that I would bump into her somewhere," she said.

The NSW Upper House standing committee on law and justice is currently investigating serious breaches of privacy.

It will look at whether existing laws are sufficient to protect people's privacy.

A spokesman for NSW Attorney-General Gabrielle Upton said the Government was keeping a close watch on the inquiry.

"The NSW Government awaits the findings of the inquiry and will consider any recommendations carefully," she said.

Breanna has made a confidential submission to the inquiry.

She hopes by making her story public she can get laws amended so other patients will not undergo the same fate.