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To film or not to film John Edwards
24 August 2016

Surveillance camera

When you entrust your frail and vulnerable relative to the care of a  commercial enterprise, you are entitled to expect a high standard of care. What happens when you suspect that standard is not being met?

The case of a Waikato family who installed a hidden video camera in their elderly relative’s rest home room, and discovered abuse, has been widely reported in the last 48 hours.

There’s been lots of coverage of the case, and I discussed it on Radio New Zealand this morning. It’s often not possible to convey all the different dimensions of a complex legal issue in a brief interview, so I thought I’d set out the issues here.

The first thing to note is that I have not investigated the case, and may be asked to. Sometimes things are not as they appear in the media, and it would not be fair for me to assume everyone involved has acted exactly as is being reported, so I’ll keep it general.

Reverse the roles

First, if a rest home or DHB installed covert cameras in a resident’s room, that would almost certainly be a breach of the Privacy Act, and depending on what was filmed could also be a criminal offence.

Individuals certainly have to be wary of the criminal law, but they are not subject to the Privacy Act in the same way as business, charities, government agencies and other entities. If an individual is collecting or disclosing personal information in their personal or family affairs, they do not have to comply with the information privacy principles.

That doesn’t mean they have a total free hand. If the collection or disclosure (such as by uploading an intimate video to Youtube) were “highly offensive to an ordinary reasonable person”, they might be liable under the Privacy Act, even though it was about their family affairs. Many might think that secretly taken video of an employee in their workplace, behaving abusively, would not reach that threshold.

Soon, with the Harmful Digital Communications Act 2015 coming into force, employees and others whose images or actions are posted online, will have the ability to ask for those recordings to be taken down.

Recording medical staff

Many DHBs and other workplaces have raised with me their concerns about users of their services recording staff. They are concerned for their staff’s privacy, and at the possibility they could be held up for mockery or bullying online by inappropriate use of such recordings. While I have some sympathy for those concerns, I also consider that people have a lower expectation of privacy when they are in their employment in a public service.

The suggestion that all recording should be banned is not practical or warranted. Most people will act reasonably with the wonderful new technologies that are available to us. There is no reason to ban filming grandma blowing out the candles on her 90th birthday cake, and there are many people who wish they had made a recording of the doctor or nurse’s instructions on discharge.

It is open to any workplace to have a policy on videotaping within their premises. That might be to prevent filming without permission. The question that then arises, is how is a breach enforced? In extreme circumstances a visitor might be banned, or a resident evicted. Such a step would not appear justified when the breach of the policy resulted in evidence of criminal offending or significant lapses in the standard of care residents and their families are entitled to expect.

The evidence angle

Finally, (and another reason why I decline to offer any views on this particular case), it has been reported that the caregiver shown in the video has been charged with assault. It is always open to a defendant to challenge the admissibility of evidence under section 30 of the Evidence Act 2006, if they consider a recording (for example) had been improperly obtained. When applying that section, a judge would first determine whether the evidence was improperly obtained, and then weigh up:

“whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice” taking into account:

(a)           the importance of any right breached by the impropriety and the seriousness of the intrusion on it:

(b)           the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:

(c)           the nature and quality of the improperly obtained evidence:

(d)           the seriousness of the offence with which the defendant is charged:

(e)           whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:

(f)            whether there are alternative remedies to exclusion of the evidence that can adequately provide redress to the defendant:

(g)           whether the impropriety was necessary to avoid apprehended physical danger to the Police or others:

(h)           whether there was any urgency in obtaining the improperly obtained evidence.

With video recording technology now widely available, the variety of circumstances in which questions of “the right to film” comes into contact with a right to privacy will continue to expand. For agencies, the rules are pretty clear. Engage with your customers/patients/community, and come up with a sensible policy that can be clearly expressed to both the users and subjects of video recording.

For individuals, the questions are more of modern manners and the degree to which rules of etiquette and ethics have kept pace with the ubiquity of the technology. Recent developments in the law and in society have meant that those actions are beyond the pale can be subject to legal sanctions, whether those are actions are of the filming, or the filmed.

In the meantime, if you are worried about someone in care, there are a range of options short of installing covert surveillance.

WHAT TO DO IF YOU'RE WORRIED ABOUT A FAMILY MEMBER

  • Speak to the manager of the facility. If you feel uncomfortable, a free, independent Health and Disability advocate can help. Ring 0800 555 050.
  • If you're not satisfied with the response, you can complain to the district health board, HealthCert or the Health and Disability Commissioner.

Image credit: Surveillance camera via Wikimedia Commons.

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  • If relatives are wishing to film or have a live camera feed in the room of their loved one, I would think it appropriate to advise the facility rest home manager. A camera " in wait " is inappropriate particularly if there are genuine concerns for the safety of the relative. I have my mum in a rest home, she is non verbal due to her dementia, if I thought for one second she there was a possibility of her being " abused ", I would shift her to an alternative facility and sort everything out later.

    Posted by Keren Nelson, 09/09/2016 8:57am (14 months ago)

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The aim of the Office of Privacy Commissioner’s blog is to provide a space for people to interact with the content posted. We reserve the right to moderate all comments. We will not publish any content that is abusive, defamatory or is obviously commercial. We ask for your email address so that we can contact you if necessary to clarify your comment. Please be respectful of authors and others leaving comments.

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