industry & policy
Close look at surveillance
M @ HallandWilcox
The use of CCTV cameras in residential facilities raises a number of privacy and consent concerns.
By Karl Rozenbergs
Recently, there have been a number of news stories reporting on instances of‘ elder abuse’. This includes the abuse of residents by aged-care workers and can take a variety of forms, including physical, emotional and financial. It goes without saying that such news stories have the potential to cause extensive damage to a provider’ s brand and reputation, which are paramount in the industry.
While there is no substitute for comprehensive training and education of workers and astute managerial oversight of day-to-day operations, a strategy to minimise the risk of elder abuse that is gaining some traction is the use of CCTV cameras in aged-care facilities.
Although CCTV cameras have been installed in the public and common areas of some facilities for a number of years, there has been resistance to their use in the private rooms of residents. If, however, a provider did decide to place the cameras in private rooms, it would be a complex undertaking. The use of CCTV cameras in private rooms raises a number of legal and ethical questions, such as how this practice would fit in with current privacy and surveillance legislation and who could consent to the use of the monitors in circumstances where a resident could not? The complexity of this strategy is highlighted by the results of a survey conducted in late 2014 by one of Britain’ s largest aged-care facility operators, HC-One.
The most obvious issue with the use of CCTV cameras is that it is viewed as a serious invasion of residents’ privacy. This is supported by the HC-One survey, which found that the top areas of concern were‘ privacy for residents’ and‘ who had access to’ and‘ could watch’ camera footage.
Another complex issue is who could consent to the use of the cameras in circumstances when a resident could not; for example, due to dementia.
The HC-One survey illustrates the ethical problem this raises. 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 the cameras, it is highly likely that a relative’ s decision would be against the resident’ s wishes.
The issue also goes beyond an ethical one. Under surveillance legislation in the majority of the Australian states and territories, it is an offence to install or use a CCTV camera to record a private activity without the express or implied consent of each party to the activity. A provider would, therefore, need to consider whether the consent of a relative is sufficient under the applicable surveillance legislation.
While the issues raised in this article are complex, they do not have to preclude the use of CCTV cameras in aged-care facilities. A provider with comprehensive policies and procedures in place should be able to implement the use of the cameras with the consent of residents.
These policies and procedures would firstly need to limit access to and viewing of the camera footage to protect privacy. Further, it would be prudent for the policies and procedures to state clearly that the footage may be used only for the purpose of law enforcement or legal proceedings. This has the added benefit to providers of limiting the use of footage of elder abuse by the media, reducing the potential damage to their brand and reputation.
Further, the policies and procedures would need to deal with what to do in circumstances where a resident could not give consent. Given the complexity of this issue, a conservative approach would be to allow some scope for a provider to assess each request case by case.
While the use of CCTV cameras has the potential to reduce instances of elder abuse, it is a reactive measure that cannot replace proactive actions such as comprehensive training and education of workers, and astute managerial oversight of day-to-day operations. ■
Karl Rozenbergs is a partner at Hall & Wilcox Lawyers, representing various aged-care providers over the last 10 years.
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