Requests for the installation and use of surveillance devices in residential aged care facilities are becoming more common, due in no small part to the evidence heard at the Royal Commission into Aged Care Quality and Safety. The Commission has heard evidence of family members installing hidden surveillance devices which have confirmed family concerns of potential mistreatment and abuse. The Commissioners have been particularly critical of providers who, when responding to video evidence of mistreatment or abuse, have put undue focus on the legality of a family member’s actions in installing a hidden camera without permission to the detriment of rebuilding relationships and confidence with family members.
While there are a number of complex regulatory issues to be considered before installing and using surveillance devices in residential aged care facilities, careful consideration must also be given to community expectations about the use of surveillance devices. We have set out some of the important legal considerations below.
Who is collecting the information?
Where an aged care provider installs and uses surveillance devices it must comply with applicable privacy laws because surveillance involves collecting personal information. Unless the device is installed pursuant to a court order, the provider is required to obtain consent from a resident prior to installation and use of a surveillance device.
Where a resident does not have capacity to consent, consideration should be given to whether the resident expressed a direction or preference when they did have capacity or whether the consent of an authorised substitute decision maker can be obtained. However, this issue is complicated. While persons appointed as authorised substitute decision makers (for example, an enduring guardian appointed in accordance with the Guardianship Act 1987 (NSW)) may have certain decision-making powers in relation to personal and health care decisions, it is untested as to whether these powers extend to decision-making about surveillance devices.
Where the provider is collecting surveillance footage, the provider will be responsible for ensuring storage, use and disclosure of the footage complies with applicable privacy laws.
Where a family member requests installation and use of their own device, careful consideration should be given to how the family member proposes to use and store any recordings. In this situation, it would be prudent for a provider to be clear about its expectations in relation to any footage from the outset. For example, setting clear expectations that the provider will be given access to surveillance footage in circumstances where, for example, a complaint is made against a staff member in respect of the resident. Providers should also consider communications to staff, other residents and their families where it is likely that third parties may be identifiable in any such recordings.
Have your employees been given notice of surveillance?
Under most state and territory workplace surveillance laws, employees must be provided with notice before any surveillance commences. For example, in NSW 14 days prior notice must be given. In addition, any cameras must be clearly visible and there must be signage at the entry to the room notifying people that they may be under surveillance. A failure to comply with specific legislative requirements may constitute an offence and may also mean that surveillance footage cannot be used to take adverse action against an employee.
What should you consider including in your resident-facing documentation?
It is important to consider your position on the issue and ensure you have a robust strategy in place to respond to requests to install surveillance devices.