Australia: CCTV, videos and photos in health, aged care and retirement living and disability facilities– your rights and obligations

CCTV, videos and photos in health, aged care and retirement living and disability is becoming more of an issue following the increase in the use of social media and disturbing media reports of a "secret camera" capturing the alleged abuse of an elderly man in an Adelaide nursing home in July 2016.

There are laws in each of the Australian States and Territories which restrict the use of listening, optical, data and tracking surveillance devices, some with criminal offences, including, for example, in New South Wales:

  • privacy legislation, including the Privacy Act 1988 (Cth), the Health Records and Information Privacy Act 2002 (NSW);
  • legislation which deals with workplace surveillance, Workplace Surveillance Act 2005 (NSW);
  • legislation which deals with CCTV, the Surveillance Devices Act 2007 (NSW);
  • laws protecting confidential information under common law or contract;
  • laws regulation telecommunications and cybersecurity, including Criminal Code 1995 (Cth); and
  • criminal laws prohibiting the taking or publishing indecent images, for example, the Crimes Act 1900 (NSW), section 578C and indecent filming without consent, Crimes Act 1900 (NSW), sections 91K to 91M.

Further, in relation to age care, the User Rights Principles 2014 (Cth) provides care recipients the right to personal privacy and the full and effective use of his or her personal, civil, legal and consumer rights.

There may also be contractual rights, including under the agreement between the provider and the resident/patient.

Privacy

The Privacy Act 1988 (Cth) applies to "organisations"/businesses (which can include an individual or a company) that is not a small business operator, a State/Territory agency or other excluded persons. The Privacy Act applies to all Australian private sector health service providers that hold health information (other than in an employee record), irrespective of their annual turnover: section 6D(4)(b).

However, generally, the Privacy Act does not apply to an individual acting in a personal capacity. Currently, the Privacy Act does not apply to employee records, which are dealt with separately under the laws of confidentiality and workplace surveillance laws.

The Privacy Act would apply to private sector Australian hospitals and aged care and disability service providers (and their employees), but not, for example, residents and patients.

The Act does regulate the disclosure of personal information about an individual for a benefit, service or advantage: section 6D(4)(c),(d). So there may be scope to regulate the actions of photographers or 'bloggers'.

The Privacy Act regulates the collection, use and disclosure of "personal information" which is information or an opinion about an individual who is reasonably identifiable whether the information or opinion is true or not and whether the information or opinion is recorded in a material form or not. A photo of a person's face or identifying feature (such as a tattoo) would identify the individual.

Firstly, you must only collect personal information if it is reasonably necessary for, or directly related to, one or more of your functions or activities. In addition, an organisation must only collect personal information by lawful and fair means: APP 3.5. It must also notify people of the collection of their personal information APP 5. Further, it must only use and disclose personal information for:

  • the primary purpose of collection; or
  • a secondary purpose if the individual would reasonably expect the organisation to use the information for the secondary purpose and the secondary purpose is directly related to the primary purpose for sensitive information such as health information; or
  • with the individual's consent; or
  • as otherwise permitted under the Act or law.

It is recommended that if an operator wishes to photograph, video or take any other images or recordings of personal information of a patient or Resident and wishes to use that image for business purposes that the consent (preferably written) of the individual is obtained.

Further, if an organisation holds images of a person, including CCTV footage, that information is "personal information" and the individual has the right to access that information unless an exception applies under APP 12. If access is provided, then the images of other people will need to be pixilated to protect their privacy.

The Health Records and Information Privacy Act 2002 (NSW) applies to both the public sector and private sector in New South Wales and has similar provisions.

Confidential information

It is a well-settled principle of law that where one party ('the confidant') acquires confidential information from or during his service with, or by virtue of his relationship with another ('the confider'), in circumstances importing a duty of confidence, the confidant is not ordinarily at liberty to divulge that information to a third party without the consent or against the wishes of the confider.

Attorney-General v Guardian Newspapers [No. 2] [1998] 2 WLR 805

In some cases, information, including conversations, documents and images may be taken and provided in confidence and cannot be disclosed without consent.

Obligations of confidence can apply in employment situations and between the operator of a health and aged care facility and residents and patients and also between residents and patients and their families.

Workplace Surveillance Legislation

Under the Workplace Surveillance Act 2005 (NSW) an employer commits an offence if it engages in the surveillance of an employee without providing written notice at least 14 days before the surveillance commences: section 10.

The notice must indicate:

  • the kind of surveillance to be carried out (camera, computer or tracking);
  • how the surveillance will be carried out;
  • when the surveillance will start;
  • whether the surveillance will be continuous or intermittent; and
  • whether the surveillance will be for a specified period or ongoing.

For camera surveillance of an employee, it is only permissible to use cameras for surveillance where:

  • the cameras are clearly visible in the place where the surveillance is taking place; and
  • there are signs notifying people that they may be under surveillance in that place which are clearly visible at the entrance to that place: section 11.

Written notice by the provision within a workplace policy is sufficient.

It is important to note the definition of employer under section 3 of the Workplace Surveillance Act which extends to "another person for whom an employee performs work pursuant to a contract or other arrangement between that other person and the employee's employer (such as a labour hire contract).

The definition of employer includes a person for whom an employee performs voluntary work.

Covert surveillance is permissible in very limited circumstances, for example, for the purpose of establishing whether or not an employee is involved in any unlawful activity while at work for the employer. Law enforcement agencies are permitted to conduct such surveillance and usually only with authority of a warrant issued by a Judge or Magistrate. If an employer has reasonable grounds to suspect that an employee is engaging in unlawful activity while at work, it can either make a report to police or other relevant authority or it may apply for a covert surveillance authority under the Workplace Surveillance Act. Such authority is only granted on an application to a Magistrate, is limited to time and any conditions as set by the Magistrate. A covert surveillance authority is only to be used in relation to unlawful conduct and may not be used for performance or other matters concerning the employee / employer relationship and covert surveillance must not be taken in any change room, toilet facility or shower or other bathing facility: section 20

Under NSW legislation it would be open for an operator/Approved Provider (with or without the consent of the relevant Resident) to apply for a covert surveillance authority if there were grounds to suspect that an employee was (for example) assaulting patients/residents. However, the grounds for such suspicions would need to be plainly established for a Magistrate to authorise (without the consent of the resident) the installation of a camera into the room of resident.

Any employer (including a person contracting for services) conducting surveillance in breach of the Workplace Surveillance Act is liable to prosecution under the Workplace Surveillance Act.

Surveillance may be undertaken by agreement: section 14.

Surveillance Devices Legislation

The Surveillance Devices Act 2007 (NSW) contains an offence of knowingly installing, using or maintaining an optical surveillance device on or within premises or a vehicle or on any other object, to record visually or observe the carrying on of an activity, if the installation, use or maintenance involves:

  • entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier of the premises or vehicle, or
  • interference with the vehicle or other object without the express of implied consent of the person having lawful possession or lawful control of the vehicle of object: section 8.

This does not apply to the installation, use or maintenance of an optical surveillance device in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation.

This also does not apply if each principal party to the private activity consents expressly or impliedly to the installation, use or maintenance.

An owner of a private residence is lawfully able to install and record from a CCTV device all activities within their home or vehicle.

There are also restrictions on the overhearing, recording, monitoring and listening of private conversations to which the person is not a party and the use of tracking devices without consent.

Arguably, in relation to residential aged care facilities, both the resident and the Approved Provider "own" and/or "occupy" those premises and therefore, the consent of both is required. Certainly the Approved Provider occupies common and public areas. The consent of the resident should be obtained for their private room.

The installation of a secret CCTV recording device in a room of a facility is an offence under the Surveillance Devices Act unless permitted under the Act and can incur penalties for a contravention of up to 5 year imprisonment and fines of $11,000 for individuals and $55,000 for corporations (see s.8). The person who installs a camera device is also liable to prosecution under the Surveillance Devices Act.

If you wish to install, use or maintain a listening or optical surveillance device (separate to workplace surveillance), then you should either obtain consent or contact the Police for a warrant. This would include concerned families of residents who are unable to resolve their complaint with the approved provider.

Telecommunications and cybersecurity

The Telecommunications (Interception and Access) Act 1979 (Cth) regulates access to telecommunications content and data in Australia.

The Act makes it an offence for a person to intercept or access private telecommunications without the knowledge of those involved in that communication.

The Criminal Code 1995 (Cth) (as was amended by the Cybercrime Act 2001 (Cth)), division 477 regulate cybercrimes involving computers.

Alternative solutions

The User Rights Principles 2014 (Cth), which applies to residential aged care facilities requires Approved Providers to provide residents the right to personal privacy and to full and effective use of his or her personal, civil, legal and consumer rights.

If an Approved Provider/operator wishes to restrict people (including Residents, staff and visitors) from infringing the rights of other residents and staff by videoing or recording without their consent, an option which may be explored is the introduction of a reasonable policy or Code of Conduct, setting out rules as a condition of entry into their premises, similar to conditions of entry into shopping centres. In order to achieve this, reasonable notice must be provided of the conditions of entry.

The common areas of an aged care facility or hospital may be "private property", to which the Inclosed Lands Protection Act 1901 (NSW) and the laws of trespass to property might apply to restrict access to non-residents if the policy/Code is infringed: Halliday v Neville (1984) 155 CLR 1, 8; TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333.

There may be an action in nuisance where the activity unduly interferes with the use or enjoyment of land.

The common law in Australia does not recognise an action such as trespass to person unless the act caused the victim physical harm or psychiatric illness.

Commentary

The use of technology and surveillance in the health, aged care and retirement living and disability has its advantages, including:

  • the security provided by CCTV; and
  • lifesaving GPS location devices may provide people with mental health issues, disabilities such as autism, Alzheimer's or dementia more freedom of movement (for example, being able to spend time in the fresh air outdoors), rather than being confined indoors1.

In relation to concerns of elder abuse, one would think that secretly filming a carer would have been a last resort, and a better solution would be a discussion and resolution of the concerns.

Certainly, concerned family and friends may be willing to, for ease of mind, pay for the privilege of being able to have more contact with their loved one by way of information technology such as photos, videos and skype.

However, balanced against those rights are legal obligations of privacy and compliance with surveillance and other laws, which are summarised above.

In residential aged care or community homes for people with disabilities, there is a blurring of the workplace and people's homes.

If there is concern sufficient to warrant covert surveillance, the recommended approach is to contact the Police to seek a court warrant.

Footnote

1 http://www.alzheimers.net/8-8-14-location-devices-dementia/

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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