We are increasingly being called upon to assist providers navigate the challenging issue and risks associated with the installation of surveillance equipment in aged care services.

Complex issues arise when surveillance equipment is used with the specific intent of capturing the provision of care services to one care recipient, either in the residential care context or in the home care context, rather than the use of surveillance equipment in the common areas of an aged care facility where it might be the intent to capture the activities of many individuals.  

There are a number of scenarios where a provider might be called upon to consider the risks and legal issues associated with the use of surveillance equipment to capture the activities of an individual care recipient, but we see them falling into the following broad categories:

• The use of surveillance equipment in a resident's room in a residential aged care facility, with the provider's consent
• The use of surveillance in a home care recipient's home, with the home care provider's knowledge
• The use surveillance equipment in either a residential or a home care context, without the consent or knowledge of the provider.

Obligations

While there are no government regulations or guidelines specifically addressing the complex issues relating to the use of surveillance equipment in an aged care context either in residential care (in a resident's room) or in a care recipient's home, there are numerous legislative obligations on approved providers in relation to managing and respecting the privacy of care recipients, staff and other persons whose personal and private information may be collected, used and disclosed through surveillance. The obligations on a provider in respect of the management of surveillance activities, vary in each State and can apply regardless of whether the provider has agreed or consented to the use of surveillance equipment.

Risks

There are a range of risks associated with the use of  surveillance equipment in an aged care context. Depending on the circumstances, there may be legal and commercial risks for an approved provider of aged care, their staff and for other persons (such as consumers or family members) if they install or allow the installation of surveillance equipment without the knowledge and/or consent of the persons who might be captured by the footage. The risks, include:

• Committing a criminal offence that is punishable by a fine and/or imprisonment
• Contravening privacy obligations under legislation
• Breaching the terms of a resident or home care client agreement
• Breaching the terms of a staff member's employment contract
• Potential reputational damage.

Compliance

In the absence of specific regulations, and with complex and often competing legislative responsibilities, it becomes a matter for an approved provider to balance the risks of not complying with their obligations in respect of surveillance in their facilities and home care recipient's homes, with the wishes of the care recipients, family members and staff. There is no strict formula for this and it is something each provider must work through having regard to the relevant factors and individual circumstances of each case.

The most risk averse approach would be for the approved provider to prohibit all forms of  surveillance equipment or surveillance in a resident's room, or to state it will not provide home care services unless the care recipient agrees they will not use surveillance equipment.

However, this approach is not consistent with the industry shift towards a more transparent and collaborative approach to the provision of care services. Furthermore, even if a provider were to adopt this approach, it is reasonable to assume that some consumers or their family members will still want to install surveillance equipment and may do so without informing the provider.

Thomson Geer materials

Thomson Geer has prepared a range of fixed price materials to assist providers to navigate their obligations in respect of the use of surveillance equipment in residential care and home care. They include the following:

• Broad form advice on the use of surveillance equipment in residential care and home care
• Policy – Use of surveillance equipment in resident rooms in residential care
• Policy – Use of surveillance equipment in home care
• Memo to staff on the use of surveillance equipment in home care
• Memo to staff on the use of surveillance equipment in a resident's room in residential care
• Memo to residents and representatives on the use of surveillance equipment in a resident's room in residential care
• Acknowledgement and consent for the installation and use of surveillance equipment in a resident's room in residential care.

We can also provide a summary (in table form) of the differences in relevant legislation across each of the states.  

Further advice

If you are looking for guidance and support in respect of the use of surveillance equipment in aged care facilities or in a home care recipient's home that complies with your legal obligations, please contact the Health and Aged Care Team at Thomson Geer.

Authors

Julie McStay | Partner| +61 7 3338 7522 | jmcstay@tglaw.com.au

Clint Bowman | Senior Associate | +61 7 3338 7544 | cbowman@tglaw.com.au

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