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Surveillance in Long-Term Care Facilities: Who has the Right?

As recently reported by the Ottawa Citizen, Québec has created new rules governing the use of surveillance cameras in the province’s long-term care homes. The new regulatory regime takes effect on March 7, 2018, and is intended to protect the health and well-being of residents by allowing them to install video surveillance in their suites with or without the permission of the long-term care facility.

Elder abuse is a pervasive issue which is likely to become more prevalent as the Canadian population ages. According to a Statistics Canada prediction, almost one in four Canadians will be over the age of 65 by 2030. Elder abuse can be physical, psychological, and sexual, and financial, and older adults may face cognitive impairment, physical impairment, or isolation from family and friends that make them more vulnerable to such abuse.

In Ontario, residents of the province’s long-term care facilities are protected by a Resident’s Bill of Rights in s. the Long-Term Care Homes Act, 2007, S.O. 2007, c. 8 (the “Act”), at s. 3(1), which includes the right, inter alia, to be protected from abuse, to be treated with courtesy and respect, and to live in a clean and safe environment. The Act also provides mechanisms for reporting and complaints about violations of residents’ rights at ss. 21-28, however, save for the worst breaches of patients’ rights, the residents report to the licensee (operator) of the facility at first instance. Given the imbalanced relationship between the residents and the licensees, and the interest of the latter in minimizing the seriousness of complaints, it is hardly surprising that residents and their loved ones feel that they need additional protections – i.e. their own surveillance tools – in order to prevent and document instances of abuse and neglect.

One overriding concern is the privacy of residents. The Residents’ Bill of Rights contained in the Act also includes protections for the privacy of residents, including privacy of treatment, privacy of communications, and the right to meet with friends and family in private. In order to accommodate the privacy of residents, the regulations provide that the confidentiality of the recorded images must be ensured, and the identity of those recorded protected.

In Ontario, regulations regarding the use of video surveillance by residents in care facilities does not exist, and per the Minister of Health and Long-Term Care, Eric Hoskins, are not in development. However, the law appears to allow the use of recording devices in certain circumstances. The Criminal Code, at s. 184, criminalizes the act of recording audio of private communications unless one party to the communication consents. This could lead to issues if the resident is out of the room during a conversation between others, or, potentially, if the resident lacks the capacity to consent to the surveillance.

The Advocacy Centre for the Elderly (“ACE”), a community-based legal clinic for the elderly located in Toronto, takes the position that residents and their families have the right to record video, regardless of what a facility says. Jane Madeus, a lawyer with ACE, suggests that the decision to record video should rest with the resident’s substitute decision-maker if the resident lacks the capacity to make that decision. One additional caution is that, as the Residents’ Bill of Rights guarantees the right of residents to share a room with another resident if they both agree, special care should be taken to obtain the consent of a resident’s roommate or their substitute decision-maker if an individual wishes to place surveillance devices in a shared room.

Overall, the Québec regulations allowing the use of surveillance devices without notice to the care facility appears to address two potential issues with the abuse and neglect in care facilities: the ability of a resident to prove a claim of abuse of neglect, and the prevention of staff or institutional interference with recordings that aren’t in the control of the patient. The regulations could also serve as a deterrent.

As for Ontario, allowing the use of private surveillance devices appears to correlate with the overall intent of the Residents’ Bill of Rights, which is to grant residents, to the extent possible, the same rights and opportunities that they would otherwise expect as private citizens. However, residents, and especially those lacking capacity, will still require economic and social resources in order to install a recording device and manage its use on an ongoing basis. The most vulnerable residents – those with limited resources, or lacking capacity, or without close friends and family – remain exposed to neglect and abuse. As such, it is as important as ever to regulate and closely monitor long-term care facilities, and pursue preventative measures, in order to ensure that residents are adequately cared for.

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