Aged care providers should be aware of the legal implications of families installing surveillance devices in residents’ bedrooms without permission.
That’s according to aged care paralegal Sophie Andritsos, who is researching the area as part of her Monash University law degree honours thesis.
The use of surveillance devices – particularly streaming and video recording devices – is increasing in residential aged care.
Many families are installing devices in the bedrooms of relatives who have dementia or other cognitive impairment because of safety concerns around falls or even abuse.
But Ms Andritsos argues these families may not have a legal right to do so.
“We have a tendency to infantalise older people and this is shaping how we approach surveillance devices in care,” Ms Andritsos told Australian Ageing Agenda.
“There are social and policy issues tied up in this, but providers and appointed decision-makers should also be aware of the legal limits and implications of the actions they are taking.”
Ms Andritsos’s research aimed to find out how the law treated the use of surveillance cameras in aged care and the best practice process for providers.
She 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.
Ms Andritsos 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.
Consent should be obtained
The findings, which she will present at next week’s National Elder Abuse Conference, suggest that decision-makers may not be empowered to consent to the use of camera’s in a resident’s room.
This also has implications for aged care providers, she said.
“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,” Ms Andritsos 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 5th National Elder Abuse Conference takes place on 19-20 February at the Sofitel Sydney Wentworth.
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