Yet it remains a complicated issue, as there may be legal implications of families installing surveillance devices in residents’ bedrooms without permission. The use of surveillance devices – particularly streaming and video recording devices – is increasing in residential aged care, because many families are installing devices in the bedrooms of relatives who have dementia or other cognitive impairment due to safety concerns around falls or even abuse. Recent research aimed to find out how the law treated the use of surveillance cameras in aged care and the best practice process for providers. The research explored the issue under the different state surveillance, health records and decision-making legislation, federal privacy and aged care law as well as potential tort law that may apply. It also considered the right of aged care residents to privacy and dignity in a homelike environment, and the obligation of the aged care provider to protect this right.The findings of the research were presented in February at the National Elder Abuse Conference, and show that decision-makers may not be empowered to consent to the use of cameras in a resident’s room.“The key takeaway is that it isn’t clear that the decision making powers that can be granted under a Guardianship Order, Power of Attorney or Advance Health Directive provide for you to film someone in their bedroom,” the research author said.
“Filming someone in their bedroom is something you should obtain consent to do. The ability to consent to this kind of arrangement on behalf of a protected person isn’t necessarily what is granted under a standard guardianship order.”
She said residential aged care providers should take cues and instructions from the resident first.
“Third party decision-makers should only be relied upon as a last resort, and should only be making decisions within their scope of powers.”
The spark for the ongoing topic of surveillance cameras in aged care has once again been ignited in a recent submission for the Inquiry into the Quality of Care in Residential Aged Care Facilities in Australia.
Occupational Therapy Australia (OTA) was behind the 16-page submission which included a number of recommendations, such as the potential inclusion of cameras to record instances of malpractice and elder abuse.
The allied health group in their submission highlights the role cameras can play in calling out issues in aged care by reflecting on the use of the technology in uncovering the issue of a carer suffocating a patient at a facility in South Australia, which they say led to the carer being later convicted of aggravated assault.
Their recommendation states that “video surveillance should be allowed in private rooms of residential aged care facilities (RACFs) with the permission of residents or their families and guardians.
“OTA joins other interested parties in calling for the use of video surveillance in private rooms of aged care facilities to be considered.
“The case of elder abuse in South Australia mentioned above was only uncovered because the patient’s daughter placed a hidden camera in his room.
“OTA believes that video surveillance should be allowed in private rooms with the permission of residents, or their family members and guardians.”
Federal Minister for Aged Care Ken Wyatt says the care of Australian seniors is a “top priority and makes note of the issues surrounding the implementation of video surveillance in aged care.
“The quality care of senior Australians is a top priority and the health, safety and welfare of aged care recipients is paramount,” he says.
“Video surveillance in aged care settings is a complex issue, requiring careful consideration of its merits for each individual situation.
“Aged care providers must balance each care recipient’s right to privacy and dignity with the care recipient’s right to live in a safe, secure and home-like environment without exploitation and abuse.
“Approved providers must ensure that the use of any such device is in agreement with the care recipient and complies with the relevant State and Territory legislation.”
The Minister adds that the current compliance framework is in place to “promote high quality aged care” and includes comprehensive quality standards, quality monitoring, complaints management and strong enforcement powers.
The Aged Care Industry Association (ACIA) rejected the call for mandatory surveillance cameras are the solution. CEO Luke Westenberg said: “Introducing mandatory surveillance cameras raises more problems than it solves. Surveillance footage must be viewed – by whom? If it is to be stored, how can that be kept secure? Will older people be recorded in their bathrooms? Abuse may take place in areas out of surveillance coverage. What about the privacy and dignity of residents who cannot provide their consent to a camera due to dementia? What about the privacy and rights of staff who do not consent to being filmed or whose judgment is impaired if they are reluctant to provide care on camera? It is not a respectful, or a viable solution for protecting older people.”
If you have any questions about the welfare of an older person, or if you suspect elder abuse, contact us today. We offer a FREE, 10-minute phone consultation.