Surveillance in Personal Care Homes: A Case Study
We often get questions from those working in personal care homes and family members of residents about the use of hidden video surveillance. We thought we would share some of our thoughts on the issue as it relates to privacy concerns.
Imagine this scenario: Family members of Grandmother, an elderly woman with dementia, suspect that she is being mistreated or maybe even abused by staff in her personal care home. The family requires proof to move forward with their allegations and make changes in the care that is being provided. The family considers putting a hidden recording device in Jane’s room to monitor the actions of staff and to ensure the protection of their loved one.
Without a doubt, there are many parties that can have their privacy rights affected by this scenario. We will discuss the case of each:
- Grandmother;
- The care home as a “trustee” under The Health Information Protection Act[1] (HIPA);
- The staff that work at the care home;
- Other residents who reside in the care home; and
- The family member(s) responsible for the recording (Substitute Decision Maker).
Here are some privacy considerations to review:
The Personal Care Home/Trustee
Our office is cloaked with the mandate of administering HIPA in this province. HIPA is the privacy act that specifically applies in situations where personal health information is involved. However, the privacy rules and exemptions contained within HIPA only apply to a “trustee” and its staff. In this scenario, the personal care home is the trustee. Since Jane’s family is making the recording, HIPA would not apply to the trustee in this situation. HIPA may apply to the trustee, however, if the family provides the video to the personal care home after filming. This determination will be based on what use the trustee makes of the video.
Personal care homes do have a duty to protect the personal health information of their residents. In the interest of safeguarding the personal health information of all residents, personal care homes may consider developing policies and guidelines for families. But when it comes to secret video recording cameras the connection with a personal care home is remote when the camera is brought into the care home by a family member of a resident.
Grandmother
A recording device can only be used if Grandmother gives her consent. In this case, Grandmother has dementia and cannot legally give consent. If she were able to give consent, she would likely be able to bring forward allegations on her own and the recording device would provide corroboration. Families need to know that if they have a loved one who is going to commence residency in a personal care home – it is crucial for the family and for Grandmother to pursue a legal substitute decision maker. A substitution decision maker is a contractual relationship similar to a power of attorney and it gives the delegated person the authority to choose to put surveillance in her room. We urge the substitute decision maker to carefully consider their loved one’s wishes. For example, intimate care might be captured. Would Grandmother have accepted this intrusion – or is this perhaps an area where the greatest abuse can occur? Substitution decision maker agreements must be formally entered into between two parties who both have capacity and within the confines of a legal agreement witnessed and supervised by a lawyer in the province of Saskatchewan. We highly recommend the pursuit of this arrangement where there is an elderly loved one who must enter into care in a third-party environment.
The Roommate
If Grandmother has a roommate, substitute decision makers should ensure that the camera only captures their loved one’s personal space. The capture of any images of a roommate in this situation will violate the privacy considerations of the roommate unless written consent of the roommate is obtained. Further, as we will discuss below, surveillance should not have an audio component.
Grandmother’s Substitute Decision Maker
There are some risks associated with surveillance that the substitute decision maker should weigh. There may be Criminal Code considerations and while we cannot give legal advice on this blog, we highly recommend that anyone who wishes to pursue this line of protection for a loved one engage the legal opinion of a lawyer who is experienced in criminal law.
The Personal Care Home Worker
As discussed above, HIPA does not apply to a trustee in this fact situation and if a personal care home worker was upset with the recording – our office would not accept a complaint because HIPA does not apply. Further, the personal care home is Grandmother’s dwelling and staff in a personal care home cannot expect to have any expectation of privacy when providing care to an individual. As long as the person who installed the camera could testify to the integrity of the workings of the camera and the authenticity of the recording after it was downloaded – the video would in all likelihood be admissible evidence in a court of law. We reference: R v Llanto, 2018 BCPC 102 which is a case out of British Columbia but a case where a hidden camera in the room of an elderly loved one provided evidence of elder abuse and assault.
[1] The Health Information Protection Act, SS 1999, c.H-0.021, as amended.