In brief

• Requests for the installation and use of surveillance devices in residential aged care facilities are becoming more common, as are reports of covert surveillance devices being installed by family members. This is due in no small part to the evidence heard at the Royal Commission into Aged Care Quality and Safety.
• While there are questions around the legality of covert surveillance, 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 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, careful consideration must be given to how consent can be obtained. 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?

As has been seen in the evidence before the Royal Commission, providers have been criticised for focusing on the legality of a family member’s actions in installing covert surveillance devices. A better approach is for providers to work with residents and their families from the outset to discuss options where there are concerns for a resident’s wellbeing. A clause can be included in a resident contract to prohibit the installation of covert surveillance devices. However, drawing the resident or their representative’s attention to legal restrictions regarding covert surveillance – including that it can be an offence to publish certain material obtained by covert surveillance – may be of little effect if a court finds that the probative value of surveillance footage outweighs the fact that the footage was obtained illegally.

When responding to a request for the installation and use of a surveillance device in resident accommodation, check your resident agreements to see if there are any specific clauses relating to the use of surveillance devices. Expectations can be set by including clauses which require a resident, or resident’s authorised representative, to give notice prior to installation and use of a surveillance device or not to publish or post footage that identifies staff or other residents/visitors.

Where a provider installs a device, clear expectations should be set about how long footage is retained for and whether footage is monitored or checked regularly as a matter of course (or only in the event of concerns being raised). In addition, check your privacy policy and other internal documents to ensure they reflect your approach to surveillance devices, particularly in relation to the use of surveillance in common areas.

Given the increasing focus on surveillance, 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.

This article was published in Edition 1 of The Prescription.