The fundamental principle to be applied in interpreting Ontario's Fixing Long-Term Care Act, 2021 is that a long-term care home is primarily the home of its residents and a place in which they may live with dignity and in security, safety and comfort.1 Over the past decade, many residents and their family members, and certain long-term care home operators, have relied upon the use of "granny cams" as a means to promote the interests of security and safety espoused by the fundamental principle.
Video surveillance through granny cams can act as a deterrent against resident abuse and neglect by a long-term care home's staff members and can serve as evidence for operators to defend against unfounded allegations of resident mistreatment by staff. Those opposed to the use of granny cams have cited concerns about the potential for constant video surveillance to breach both resident and employee privacy, and to damage staff morale.
More recently, the use of more sophisticated smart home technology by residents and their families in long-term care homes has amplified safety, privacy and morale concerns and has given rise to new issues relating to the provision of resident care.
The granny cam
Traditionally, the granny cam operated as a live-feed video camera which can be used by family member(s) of a resident to monitor the well-being of their loved one. The basic granny cam model consists of a stationary video camera that provides live feeds to an end user, sometimes with the ability to record video on a continuous loop allowing family member(s) to review the footage later.
Generally speaking, long-term care home operators have permitted the use of traditional granny cams in resident rooms, subject to specific parameters. For instance, a long-term care home's policies and procedures on the use of granny cams typically provide, amongst other things, that: (i) the resident (and any co-resident roommate) must consent to the installation and use of the granny cam, or consent must be obtained from the applicable resident's substitute decision-maker ("SDM") if the resident lacks decision-making capacity; (ii) the granny cam cannot be installed in a location where there is a reasonable expectation of privacy (e.g. bathroom); and (iii) the granny cam must not have an audio feature or, if it has this feature, it must be kept disabled at all times.
A long-term care home's policy terms which require that a granny cam not capture audio stems from certain provisions contained in Canada's Criminal Code, which make it a criminal offence to intercept a private communication made without the consent of at least one of the parties to the conversation.2 For instance, a criminal offence may be committed in circumstances where a granny cam intercepts or records a private conversation between two staff members or between a staff member and co-resident who have not consented to the recording. Further, policy requirements that a granny cam not be installed where there is a reasonable expectation of privacy are aimed at avoiding the criminal offence of voyeurism, which includes making a video recording in which a person is naked or is engaged in explicit sexual activity.3
Without doubt, there are those who remain skeptical about the use of traditional granny cams in long-term care homes. Concerns regarding breach of a resident's or long-term care staff's privacy, cultivating distrust between families and staff, and the negative impact on staff morale continue to fuel the debate. That said, with proper parameters in place, the use of traditional granny cams appears to have found its place in many long-term care homes in Ontario.
Smart home technology
The use of smart home technology in long-term care homes is relatively new and becoming increasingly accessible and popular amongst residents as it can offer certain benefits. For instance, the use of a smart home device in a resident's room can enhance communication and social connection, provide increased accessibility (e.g. controlling a lamp or television), improve emergency response (e.g. in the event of falls), and promote the general independence of seniors. However, these benefits must be weighed in the larger context, where there are heightened concerns about resident safety and privacy, and quality of resident care.
Smart home technology generally refers to devices and systems, including "smart cameras," that allow users to view video surveillance of their home and additionally control functions such as lighting and heating remotely, often using an app on their smartphone or another networked device. Smart home devices now making their way into long-term care homes differ from the traditional granny cams due to their advanced functionality which includes features such as real-time alerts, cloud storage capabilities, voice controls, motion detection, night vision, and integration with other smart home systems.
Unlike in jurisdictions such as Quebec, Ontario does not have legislation which specifically addresses how recording devices can or should be used in long-term care homes
In a long-term care home, "smart cameras" allow family members of a resident to access a live video feed of a resident's room through a mobile app and receive real-time alerts to notify them immediately of any activity so that they can react quickly, if needed. For instance, smart cameras are being utilized to send alerts to family members on their mobile phones when staff enter a resident's room to provide care, allowing family members to observe care in real time. Additionally, smart cameras often allow for voice communication and thus, can act as an intercom between the app and the camera. This feature enables family members to speak directly with staff, via voice or video calls, as care is provided to a resident. As many smart cameras are wireless, they can also be easily repositioned or relocated, making privacy more difficult to monitor. Like traditional granny cams, smart cameras also offer a resident's family access to live and recorded video surveillance; however, their enhanced functionality has sparked new challenges for long-term care home operators.
One of the primary concerns shared by long-term care home operators is the use of smart cameras by family members to critique and attempt to direct resident care. Operators have been experiencing situations in which certain family members opt to receive real-time alerts of when care is provided (presumably using motion detection features), observe the care in real time and use the voice intercom to instruct staff on how to provide care. This has led to instances in which family members have attempted to interfere with care in a manner contrary to the resident's plan of care and express instructions from the resident's SDM. This form of virtual interaction is also distracting for long-term care staff as it can lead to errors when providing care. Perhaps not surprisingly, some staff members have expressed feelings of fear of and intimation by family members who intrusively monitor care in real time, leading to increased reports of workplace harassment to which operators must respond. As a result, the use of smart home devices by family members in this manner has given rise to heightened concerns of compromised resident care and the undermining of relationships between a resident's SDMs and family members with long-term care staff.
Another significant concern with respect to the use of smart home technology in long-term care homes is data security. Smart home devices can gather sensitive personal information about residents, including anything from recording personal conversations to collecting health metrics and daily routines. This information is stored on external servers, which may involve sharing data with third parties for analytics or advertising purposes. Legitimate concerns arise about who has access to the sensitive information collected, how it may be used, and how it may be stored. If this data is not adequately protected, it can result in residents being vulnerable to data breaches, which may result in adverse outcomes like identity theft or other forms of exploitation if the data falls into the wrong hands. Residents and their SDMs must do more than simply consent to the installation and use of a smart camera – they must also be able to choose which data is shared with third parties and know when to opt out of certain smart camera features. This may be particularly challenging in long-term care settings, where cognitive impairments or lack of digital literacy may limit the ability of residents or their SDMs to fully comprehend the privacy policies, data access permissions or controls of smart home devices. This then leads to the question of whether long-term care home operators should be addressing data security issues related to the use of smart home devices by residents through written institutional policies and procedures.
The legal framework
In Ontario, there is no law which probits or permits the use of granny cams or smart home devices, such as Google Nest or Amazon Hubs, in long-term care homes. Unlike in jurisdictions such as Quebec, Ontario does not have legislation which specifically addresses how recording devices can or should be used in long-term care homes. Given that Ontario's Fixing Long-Term Care Act, 2021 and other provincial statutes do not have specific language around recording devices, long-term care home operators must formulate their own policies and procedures which balance the rights of residents to safety and security against the privacy rights of others, including staff and co-residents.
Although Ontario lacks legislation specific to the use of granny cams and smart cameras in long-term care homes, there is federal and provincial legislation and case law which indirectly addresses the matter.
Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms, along with relevant case law, establishes that there is a reasonable expectation of privacy for individuals, including long-term care home residents and staff members in group settings. The Supreme Court of Canada has recognized that any unauthorized electronic surveillance, including both audio and video recordings, where an individual has a reasonable expectation of privacy constitutes unreasonable search and seizure under section 8 of the Charter.4 Usually, section 8 of the Charter is understood to apply to the privacy that exists between individuals and government entities or agents. However, in R. v. Jarvis, the Supreme Court of Canada held that "the s. 8 case law contemplates that individuals may have reasonable expectations of privacy against other private individuals."5
Criminal Code
As mentioned above, the Criminal Code contains offences relating to invasion of privacy. The interception of private communications is an offence, unless it is an interception which is consented to by at least one of the parties. Further, under the Criminal Code, it is an offence to surreptitiously observe or visually record a person who is in circumstances that give rise to a reasonable expectation of privacy, including if the person is in a place where they can reasonably expect to be naked or to be engaged in explicit sexual activity.
Under the Criminal Code, it is an offence to surreptitiously observe or visually record a person who is in circumstances that give rise to a reasonable expectation of privacy
Fixing Long-Term Care Act, 2021
Although the Fixing Long-Term Care Act, 2021 does not specifically address the use of video surveillance in long-term care homes, it does contain a Residents' Bill of Rights6 which speaks to safety and privacy. Under the Residents' Bill of Rights, residents of long-term care homes have the right to freedom from abuse and neglect, and the right to live in a safe environment. Advocates have argued that each of these rights may be promoted though the use of smart home technology, including granny cams or smart cameras, in a resident's room. However, residents also have rights to communicate in confidence, consult in private with any person without interference, meet privately with their spouse or another person in a room that assures privacy, to be afforded privacy in treatment and in caring for their personal needs, and to have their personal health information kept confidential in accordance with Ontario's Personal Health Information Protection Act, 2004 ("PHIPA")7. These privacy rights militate against the use of granny cams and smart cameras in long-term care homes. This potential clash of rights presents a challenge to long-term care home operators, who are obliged to fully respect and promote all rights under the Residents' Bill of Rights.
In the absence of any Ontario-specific legislation governing the use of granny cams and smart home devices in long-term care home, operators, residents and family members are encouraged to proceed with caution
Personal Health Information Protection Act, 2004
PHIPA is Ontario health privacy legislation which governs the collection, use and disclosure of an individual's personal health information, including residents of long-term care homes. Consent is required for the collection, use and disclosure of resident personal health information with few exceptions. Thus, PHIPA suggests that users of granny cams and smart home devices in long-term care settings require an appropriate consent for the collection of resident personal health information, including the consent of a co-resident sharing a room with a resident (or the consent of their SDM) who proposes to install a recording device. As long-term care home operators are required to protect resident privacy under PHIPA and the Residents' Bill of Rights, it behooves them to ensure that proper consents are obtained.
Common Law
The common law in Ontario also protects an individual's reasonable expectation of privacy through privacy torts, including the tort known as "intrusion upon seclusion." The tort of "intrusion upon seclusion" protects individuals against the intentional or reckless intrusion, physically or otherwise, upon the seclusion of their private affairs or concerns. If the invasion is considered highly offensive to a reasonable person, the perpetrator is liable for the invasion of privacy. It is important for operators of long-term care homes and their residents and families to be aware of the potential liability that may arise when using granny cams or smart home technology in a resident's room without obtaining the consent of a co-resident or their SDM.
Best practices
In the absence of any Ontario-specific legislation governing the use of granny cams and smart home devices in long-term care homes, operators, residents and family members are encouraged to proceed with caution. Generally, the use of traditional granny cams with consent in areas where there is no reasonable expectation of privacy is permissible; however, audio recording must not be permitted as it may be a criminal offence. If a smart camera is to be installed in a resident's room, additional safeguards regarding their use are prudent, including those which address intrusive monitoring by family members and data security. In terms of data security, it is best practice to not permit a vendor of smart home technology to use the personal data collected from a device as training data for the benefit of its system or to train an artificial intelligence platform. It is also important to arrange for signage to be prominently posted informing residents, staff and visitors that a resident's room is subject to video surveillance.
Policies and procedures which deal with the proper use of granny cams and smart home devices in a long-term care home have become critical to ensuring legal compliance and resident well-being. Long-term care home operators will need to oversee and ensure adherence to policies and procedures and intervene when actions by family members interfere with safety, privacy, or the workplace environment.
Footnotes
1. Fixing Long-Term Care Act, 2021, S.O. 2021, c. 39, Sched. 1, s.1. ["FLTCA"]
2. Criminal Code, R.S.C., 1985, c. C-46, ss. 183, 183.1 and 184.
3. Ibid, s.162
4. R. v. Jarvis, 2019 SCC 10.
5. Ibid. at para.58.
6. FLTCA, supra note 1, s.3(1).
7. S.O. 2004, c. 3, Sched. A.
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.
