May 11, 2021

Is it legal for a family member to hide a security camera in a resident’s room?

Hidden security cameras

These families often felt their concerns were not being listened to by the home’s management, leaving them nowhere to turn – and they made the difficult decision to take matters into their own hands.

However, by placing cameras in a loved one’s room without gaining consent from either the loved one in care or the staff being filmed, these well-meaning family members are placing themselves in a precarious position.

Secretly hiding a camera in a resident’s room without their consent may be against the law.

“Family members who install surveillance devices without the consent of the provider may be committing an offence,” Tanya Chapman, Senior Associate specialising in estates and elder law with Catherine Henry Lawyers, told HelloCare.

Though every state and territory has its own surveillance legislation, which restricts the use of surveillance equipment, in NSW it is an offence for a person to record an activity without the consent of each party to the activity, says Chapman. 

“This could include other residents, visitors and staff. The consent of the owner of the premises may also be required.”

Any surveillance camera in an aged care facility should be visible and there should be signage letting residents, visitors and staff know that there are cameras in the area, says Chapman.

There are also regulations about the collection, storage and use of the footage that may apply, she said.

Should cameras be installed in a resident’s room?

Stewart Johnston has become a well-known campaigner for reforms in aged care after his mother suffered abuse and neglect at the now infamous aged care home, Oakden. 

Johnston’s important campaigning about the appalling conditions in some aged care homes was a significant contributor to the government’s decision to launch a royal commission.

Johnston told HelloCare he believes cameras should be installed in aged care residents rooms, with their consent.

“I fully support the option of installing CCTV in residents’ rooms in care environments, but crucially only with the full authority and approval of the resident or their representative,” he said.

And it seems there is support among family and residents for surveillance, too. 

A recent survey conducted by Edith Cowan University found 48% of family members and 25% of residents would like CCTV cameras to be used in bedrooms. The survey found 57% of family members and 38% of residents at one aged care home would like CCTV used in public spaces.

Since the Oakden revelations, Johnston says there has been “a seismic shift towards support for CCTV in care homes”.

Chapman has a different view on installing cameras in aged care homes. 

“My main concern would be taking away the resident’s right to refuse to consent,” she said.

“Residents have the right to privacy – it is a fundamental human right recognised in the UN Declaration of Human Rights and is in the Charter of Care Recipients’ Rights and Responsibilities in Australia.”

One option would be to include the use of surveillance cameras in the policies or Code of Conduct of an aged care facility, as in shopping centres, so that as a condition of entry you consent to surveillance, Chapman proposed.

The CEO of leading peak body for aged care providers, Leading Age Services Australia (LASA), Sean Rooney, told HelloCare some homes are already putting cameras in residents’ rooms at the request of the resident. 

But he said families should always try to talk to management about their concerns and to have them addressed in an open forum. 

“We can understand what might motivate a family to secretly place a camera. But the rights of the older person in care, the staff and others in the facility need to be respected. 

“Further, the laws regarding surveillance also need to be complied with.  

“The primary safeguard should be fostering a culture of trust and disclosure where residents, families, staff and carers are encouraged and supported to speak up if they have a question or concern, and to feel confident that their concerns will be addressed.”

Cameras no replacement for staff

CCTV will never replace staff, and will not prevent abuse or neglect, Johnston said. 

“What it will do is provide irrefutable proof of an event, should one occur, to clarify a situation – not just to prove guilt, but, importantly, to provide context and innocence. 

CCTV cameras can also give “peace of mind” to families and friends.

Johnston believes monitoring of the footage is also a key issue that needs careful consideration. 

“My support for CCTV in Aged Care facilities has always been on the proviso that the monitoring is done independently,” Johnston told HelloCare. 

“I don’t advocate for the installation of any surveillance system that is … controlled entirely by the operator.

“CCTV done correctly … is one that provides the highest level of security and data integrity, independently monitored by compliance/health professionals and is an invaluable tool for all concerned.”

Technology already exists that can redact personal areas, be triggered by falls or adverse events, and the camera doesn’t need to be live 24/7. Audio options also exist for bathrooms.

Johnston believes there is still “fear mongering” about the use of CCTV in aged care generated by those wishing to maintain “the status quo” and concerned about revealing “serious known deficiencies in a particular organisation or site”. 

Thinking about installing a camera in a loved one’s room?

If a family is thinking of placing a camera into a loved one’s room, the resident’s permission should “absolutely” be obtained first, Chapman said. 

This can become “problematic” if the room is shared. In this case both residents would have to give their consent. 

The family should also discuss installing the camera with the aged care home’s management, Chapman said. 

“To be legal, staff and visitors would need to consent to being filmed and this is something the provider would need to manage,” she said.

Chapman suggests that where a staff member has found a hidden camera in a resident’s room, the provider should “constructively” engage with the family to understand their concerns and investigate if those concerns were warranted. 

Can a guardian make the decision?

Before a camera is installed or used, consent to record images should be obtained from the resident, or the resident’s authorised substitute decision maker, such as the enduring attorney or guardian.

“Care needs to be taken that the substitute decision maker is authorised to provide the necessary consent,” Chapman said.

“It is uncertain at this stage whether a guardian can consent to cameras in the resident’s room if they are not for a genuine medical purpose,” she warned.

Cameras in common areas

Despite the complexities of the issue, cameras are being installed in the common areas of aged care homes more regularly these days, most notably in dining rooms, foyers and other public areas, and their use appears only to be increasing. 

ECU is now conducting a follow-up survey to its earlier one to determine people’s views on the use of CCTV cameras in aged care, with a view to improving patient safety.

Lead researcher Dr Caroline Vafeas said she hopes the findings will help inform the potential future use of cameras in residential aged care homes.

“There are growing community calls for cameras to provide stronger protections for vulnerable residents,” she said.

Dr Vafeas said the royal commission uncovered very concerning issues around the protection and care of our most vulnerable population.

“CCTV is one tool that is being explored in some states, but importantly we need to engage with the residents, families and staff who will be most affected by any new actions or measures.

“The rights, privacy and safety of residents should be at the very heart of any decisions.”

You can complete the Edith Cowan survey about CCTV cameras in aged care by following this link.

If you are concerned about the treatment of a loved one in care, you can contact OPAN on 1800 700 600 or at their website opan.org.au

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