Following the revelations of the Royal Commission into Aged Care Quality and Safety, and noting the particular emphasis of the Commissioners on the topics of elder abuse and restraint, the use of surveillance devices and CCTV in both Residential Aged Care Facilities (RACF’s), and Retirement Villages, is an issue which has become increasingly controversial and subject to much discussion.
Many organisations which advocate on behalf of both RACF and Retirement Village residents, such as Aged & Community Services Australia and the Older Persons Advocacy Network, support the use of surveillance devices in an aged care context as a deterrent against instances of violence, elder abuse or restraint.
Of course, the use of surveillance devices to protect residents must be carefully balanced with the general privacy of the residents in a RACF or Retirement Village, as well as residents’ visitors and the staff who care for them.
What does the legislation say?
Whilst there are many laws, regulations and principles which regulate the use of surveillance devices in Australia, the application of these to the RACF and/or Retirement Village context is often complex, particularly noting the unique dynamic between Approved Providers and Village Operators, their employees, and their residents.
The foremost piece of legislation relating to the use of surveillance devices is the Surveillance Devices Act 2007 (NSW) (Act), which, in essence, operates on a basis of consent, express or implied, which may only be provided by the owner or occupier of a premises, to the installation and use of any such surveillance devices.
It is arguable, although somewhat unclear, that with respect to the application of the consent provisions of the Act in the context of a RACF or Retirement Village, the notion of consent may apply to both the Approved Provider or Village Operator, as owner of the common areas of a facility, as well as an individual resident, who may be seen as the occupier of the premises in the RACF or Retirement Village.
BBW Lawyers has assisted both Approved Providers and Village Operators who have encountered issues as a result of residents, or their families, installing surveillance devices in their rooms without prior notice or consent, which can affect staff, other residents and the resident themselves.
Surveillance in Practice
Following the findings of the Royal Commission into Aged Care Quality and safety, the South Australian Government has recently began a trial involving the installation of CCTV cameras in the rooms of residents in two RACF’s.
The idea behind the installation of these CCTV cameras is to act as a deterrent against violence and abuse, with the devices designed to detect excessive noise and/or movement. Many residents who are part of the trial have commented that they feel safer, and would consent to the use of these devices throughout RACF’s moving forward.
Comments and Considerations
Approved Providers and Village Operators should familiarise themselves with the legislative requirements and potential issues regarding the installation and use of surveillance devices in RACF’s and Retirement Villages.
Whilst South Australia is the first State to adopt the use of CCTV in resident rooms, albeit on a trial basis, based on the apparent growing support for increased safety and security measures, coupled with the external pressures of the Royal Commission’s findings, the Aged Care and Retirement Villages sector is likely to need to adapt their practices in order to minimise violence and abuse of its residents, with surveillance devices becoming an increasingly important tool.
For further information or advice regarding the use of surveillance device and the resulting legal issues, please contact BBW Lawyers’ John Fairgray, email@example.com, Balveen Saini, firstname.lastname@example.org, or Josh Mizzi, email@example.com.