Care on Candid Camera

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A resident’s privacy in aged care is rightfully to be respected and is very much legislated.

The Privacy Act, the Aged Care Act and the Charter of Rights and Responsibilities all contribute to the legal right to privacy for aged care residents.

Can there ever be a case for limiting that right or indeed abolishing it? The media and advocacy groups’ interest in elder abuse and particularly, in residential aged care, seems to be laying a foundation for that case.

Let’s take as an example, the push to introduce video cameras in residents’ rooms. On the face of it, it appears to be a reasonable response to tackling the so-called increasing incidence of abuse of residents in aged care.

But is it?

Trouble is, the groundswell of public outrage is quickly converting the venerable aged care facility to a place where private lives are being played out in public places and all for the sake of combatting a yet to be quantified problem, if the lack of reliable data on elder abuse is any guide.

In the USA, there are currently 8 States that have what are known as ‘Granny Cam Laws’. There are at least another 12 trying to introduce such laws. Effectively they provide that, with a resident’s, or their decision maker’s consent, a video camera may be installed in a resident’s room even if the facility objects.

There are currently no similar laws in Australia but how should a provider respond to a request (or demand) from a resident’s family to install a camera in a resident’s room. Can such a request be denied?

Privacy Legislation

There is no general ‘right to privacy’ in Australia.  Some right to privacy is found in specific legislation which governs certain aspects of our lives and those rights to privacy are usually only in relation to the collection and use of personal information about us.

In residential aged care specifically, a resident’s ‘right to privacy’ or to be left alone is found in the Charter of Rights and Responsibilities (section 4(a)).  As such, a provider is legally obliged to ensure that such privacy is not breached in any way without, of course, the consent of the resident concerned.

As many residents would not have the capacity to consent, it would be left to their no doubt, well intentioned decision maker, such as an Enduring Power of Attorney, to give that consent. They don’t live in the room and yet would be called upon to make a decision for someone else who does. Given that, a surprising number of family members are best described as having an overly interventionist and sometimes, misguided approach to what is best for mum or dad, (often contrary to all objective advice), they would undoubtedly jump at giving the consent, if not installing it themselves.

Criminal Law

Privacy can also be a matter for the criminal law.

In Queensland, for example, under s.227A of the Criminal Code 1899, it is a criminal offence to observe or visually record another person in circumstances where privacy would be reasonably assumed. This would include an aged care facility.

The offence is committed where there has been a lack of consent to the recording, and when the person is in a private place or engaging in a private act, and the recording is made to observe the private act. It carries a maximum prison sentence of 2 years.

A ‘private act’ is taken to mean showering or bathing, using a toilet, engaging in sexual activity or being in a state of undress. The placement of recording devices in a resident’s room where they are often aided in activities such as using the bathroom, showering, changing etc would be a breach of this obligation. However, where the facility has obtained the consent of the resident, and the recording has not been made to exploit these private activities, there may be no offence.

Other states and territories may have similar laws.

Surveillance Laws

All states and territories have similar legislation dealing with the use of listening devices and visual surveillance devices.  These laws were, by in large, intended to prevent technology-facilitated stalking and abuse but can be used to protect the privacy of residents.

These laws are also of no assistance in preventing the use of video cameras if the resident or the resident’s substitute decision maker agrees to the surveillance.

Residential Care Agreement & House Rules

An aged care facility is not a public place where anyone (including the public, residents & families & the media) can come, see and leave as they please. It is private property

The right to enter and the conduct of someone in, a facility is governed and regulated by two major legal forces namely, the by-laws, house rules or whatever you call them for your facility and legislation.

Owners of private property such as an aged care facility can and do make rules about their property which are enforceable against a person breaching them. These self-made rules, should, if they are worth their salt, have some provisions governing who may enter the facility and regulating the conduct of people in the facility. They have the ‘force of law’ in the sense that they normally form part of a residential care agreement and, as such, the resident agrees they apply to them and their visitors.

These rules are the laws of behaviour in a facility which are enforceable unless, of course, they are inconsistent with legislation in which case, the relevant legislation rules.

Policy

As discussed above, the question of installing a camera in a resident’s room usually comes up in highly emotive circumstances involving allegations of abuse, neglect or ineffective care. What will your response be? Does the facility have a policy on how it will deal with such requests?

If they don’t have a policy; now is the time for them to develop one and not wait until the crisis management mode is reached.

If a facility does have a policy which does not allow cameras; it is important to ensure that the house rules and residential care agreement support that position.

As for Me as an Aged Care Resident?

The emotive elements of age care are prey to sweeping generalisations, something that is a rite of passage for many in the media. I cannot contemplate, however, the effect on the quality of care for me inside my room of a sign outside my room which read “Beware – Video Camera Inside“.

Brian Herd

Recognised as one of the leading experts in Australia on elder law, aged care, retirement, estate planning and disability and a regular author, broadcaster and popular presenter on many elder law subjects and issues.