We are all gradually becoming alarmingly comfortable with our public lives being recorded by security cameras located in car parks, train stations, shopping centres and the reception areas of buildings large and small. Having our private lives similarly recorded is however another matter. The very thought of cameras being installed in our bedrooms and bathrooms is at once frightening and infuriating. Despite this, many families want to install them in the rooms of their relatives receiving residential care and to record the most intimate and personal of interactions.
At a personal level, I find this perplexing and thought it worth setting out some facts about the use of CCTV cameras in residential aged care settings.
What we know about CCTV cameras in residential aged care
- The Aged Care Act and Principles (Act) do not contain any specific rules about the use of CCTV cameras in residential care facilities
- Consumer advocates are becoming increasingly vocal about the need for changes to the law to make it mandatory for aged care providers to give residents the option of having cameras installed in their rooms.
- So far the Government’s response to these calls has been to make it the providers’ problem. In the words of Minister Wyatt: “Aged Care providers must balance each care recipient’s right to privacy and dignity with care recipients’ rights to live in a safe, secure and home-like environment without exploitation and abuse.”
- Families are covertly installing cameras and downloading or streaming the footage to themselves and others
- Although there is no general right to privacy in Australia there are many laws in the States and Territories that create criminal offences for filming or taking photographs of people engaged in activities that are considered to be private such as when using the toilet, showering or bathing or in a state of undress.
- A resident’s right to privacy and right to be treated with dignity and respect are protected by the User Rights Principles.
- There are work health and safety risks if surveillance is conducted without the knowledge of the employees, where there is no transparent policy about the use of footage or where the application of any such policy is inconsistent.
What we don’t know about CCTV cameras in residential aged care
At this stage there is uncertainty about whether a substitute decision maker, such as an enduring attorney or guardian, can consent to the use of cameras in a resident’s room if the purpose of the camera is for reasons other than a genuine medical purpose.
The better view is that a substitute decision maker cannot authorise the use of cameras in private spaces if the purpose is no more than to ensure proper care is being provided or “just in case” something untoward is happening.
What should providers do about CCTV cameras in residential aged care?
The one certainty is that providers cannot allow a vacuum to exist; they should make a decision about whether to allow cameras to be installed in residents’ rooms. Whatever, the decision, there must a clear policy and procedures in place to support that decision. That is the best way to manage the risks associated with residents and families covertly installing cameras.
Our view is that, without a mandatory requirement in the Aged Care Act for approved providers to give residents the option of having a camera installed, the legal risks and practical problems cannot be overcome.
This becomes obvious when you consider all of the risks that would have to be managed if cameras are allowed:
- How will the resident’s dignity and privacy be protected?
- What measures can a provider put in place to overcome the doubt about the power of substitute decision makers for residents who cannot give their consent?
- Who will own and install the cameras?
- Who will pay the costs associated with installation, maintenance and security of the cameras?
- How and with whom will the images or footage be shared?
- What cyber security arrangements will be required to ensure the footage is not misused?
- What will be the impact on the provider’s insurance policies and premiums?
- What will be the impact on staff and the quality of care?
- What will be the attitude of doctors and other health professionals to having their consultations recorded?
Unless the government makes laws that help providers and residents deal with these uncertainties, the current dilemma will continue.
If you would like further advice on how to deal with this confronting issue, please contact us.