industry & policy
their loved one in aged care might not make the decision
their relative would have.
Indeed, this potential discrepancy was highlighted by
a survey conducted in 2014 by British aged care provider
HC-One, which Rozenbergs pointed to in a piece he
wrote for Aged Care Insite.
In it, he explained that of those surveyed, only 47 per cent
of residents supported the idea of CCTV cameras in aged-
care facilities, compared with 87 per cent of relatives. “This
means that in circumstances where a resident can no longer
consent to the use of CCTV cameras, it is highly likely that
a relative’s decision would be against the resident’s wishes,”
Rozenbergs wrote.
Fellow Hall & Wilcox lawyer Melinda Bell said making
decisions surrounding surveillance is a way for older people
moving into aged care facilities to maintain independence and
feel in control.
Bell added privacy is considered a fundamental human
right and contemplated the gap in surveillance legislation in
that it doesn’t really address the use of CCTV in a residential
aged care situation – a place regarded as both a home and
a workplace.
“Someone could go into an aged care facility and, as part
of their documentation when they go in, indicate that they
don’t consent to the use of CCTV. Later, the power of attorney
might be in place and the family may change the wishes of
that person.”
Yates said a further issue with this mismatch is that the ageist
attitudes permeating society also apply within families. As an
example, family members might not consider the sexual needs of
older, frailer loved ones.
“We need to look to the rights of people to enjoy agency in
their lives, and they can, even if they don’t have full legal capacity,”
Yates said.
“There’s also the whole issue of the potential for this kind of
proposed surveillance to itself end up in an unsavoury way in
terms of who is looking at whom and what gets kept.”
Bell and Rozenbergs agreed that this is a concern. They said even
if there is consent to CCTV use, there are issues surrounding storage
and handling, including questions of who can access the footage,
how long it can be stored for, who can view it and how it is used.
Yates said rather than infantilising older adults and surveilling
them at all points in time, the discussion should focus on exploring
how CCTV might be used if there is due cause.
Rozenbergs agreed, saying: “If you really want to tackle elder
abuse – and it’s an increasing issue – then maybe you look
at reforms to surveillance laws to allow aged care providers
to implement CCTV cameras in certain circumstances. The
circumstance might be when they suspect elder abuse.”
He added there is also scope for the Royal Commission
to explore circumstances where consent is not required and
providers move ahead with the installation cameras, and added:
“Ultimately it may be that the only real solution to tackling elder
abuse is to have some form of CCTV in the room.” ■
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