A resident’s privacy in aged care is rightfully to be respected and is very much legislated.
The Privacy Act, the Aged Care Act and the Charter of Rights and Responsibilities all contribute to the legal right to privacy for aged care residents.
Can there ever be a case for limiting that right or indeed abolishing it? The media and advocacy groups’ interest in elder abuse and particularly, in residential aged care, seems to be laying a foundation for that case.
Let’s take as an example, the push to introduce video cameras in residents’ rooms. On the face of it, it appears to be a reasonable response to tackling the so-called increasing incidence of abuse of residents in aged care.
But is it?
Trouble is, the groundswell of public outrage is quickly converting the venerable aged care facility to a place where private lives are being played out in public places and all for the sake of combatting a yet to be quantified problem, if the lack of reliable data on elder abuse is any guide.
In the USA, there are currently 8 States that have what are known as ‘Granny Cam Laws’. There are at least another 12 trying to introduce such laws. Effectively they provide that, with a resident’s, or their decision maker’s consent, a video camera may be installed in a resident’s room even if the facility objects.
There are currently no similar laws in Australia but how should a provider respond to a request (or demand) from a resident’s family to install a camera in a resident’s room. Can such a request be denied?
According to Brian Herd, Partner CRH Law, there may be other laws and regulations that may play a part in forming new guidelines for Australia and the Aged Care industry e.g. Privacy Legislation, Criminal Law and Surveillance Laws.
Residential Care Agreement & House Rules
An aged care facility is not a public place where anyone (including the public, residents & families & the media) can come, see and leave as they please. It is private property.
The right to enter and the conduct of someone in, a facility is governed and regulated by two major legal forces namely, the by-laws, house rules or whatever you call them for your facility and legislation.
Owners of private property such as an aged care facility can and do make rules about their property which are enforceable against a person breaching them. These self-made rules, should, if they are worth their salt, have some provisions governing who may enter the facility and regulating the conduct of people in the facility. They have the ‘force of law’ in the sense that they normally form part of a residential care agreement and, as such, the resident agrees they apply to them and their visitors.
These rules are the laws of behaviour in a facility which are enforceable unless, of course, they are inconsistent with legislation in which case, the relevant legislation rules.
As discussed above, the question of installing a camera in a resident’s room usually comes up in highly emotive circumstances involving allegations of abuse, neglect or ineffective care. What will your response be? Does the facility have a policy on how it will deal with such requests?
If they don’t have a policy; now is the time for them to develop one and not wait until the crisis management mode is reached.
If a facility does have a policy which does not allow cameras; it is important to ensure that the house rules and residential care agreement support that position.
My experience with Residential Aged Care
Having only recently experienced the passing of my last family member from a previous generation (Father in Law), I could not speak more highly of the staff and carers at the home where he spent his last moments.
The care, dedication and love shown by these “saints” with my Father in Law, during his stay of 8 months, but more particularly during his last breaths, on that final day, was extraordinary.
It was difficult to find the words of thanks when these same staff members, and the home dog, attended the funeral.
We have some truly special people in Residential Aged Care in this country.
Source: Brian Herd CRH Law