Check Your Camera At the Door?

Recently I discussed the impact of hidden cameras.  Hidden cameras brought in by law enforcement or used for patient protection bring about a wide variety of privacy issues and can create evidentiary problems in court.  But what about the grandchild who wants to visit the facility and brings along their credit-card-sized digital camera?

As an attorney I have used pictures of the results of physical abuse in my cases.  I often advise clients who are going to a nursing home to take lots of pictures.  When people confine themselves to taking pictures of their grandmother's bed sore or the bruises on grandpa's arm, there is little in the way of an objection that should be raised by the facility.

But what of the zealots?  These are the folks who go into a nursing home, and irrespective of the privacy of other residents, wander about and take photos of other residents for the purpose of buttressing the case they are planning against the facility.

Patients who are in a demented condition cannot give permission to have their photo taken, and the facility should not permit photos of other residents who are not competent to give their consent.   For the same reason, staff should not consent to take photos, or to appear in photos of residents.  While the asserted reason for the photo may be to "remember grandma's caregivers" the unstated purpose may be to gather evidence of who was working on a particular night.

The facility must be careful not to violate federally-protected rights of residents in enforcing any camera policy it adopts.  A facility cannot exclude a family member for taking photos unless they use a legal mechanism to obtain an injunction or temporary order of protection.  This because 42 CFR 483.10 provides that only the resident may exclude people from visitation.   While the facility has a right to set visiting hours, it does not have a right to exclude family members from visitation outside those hours, and doing so can lead to a statement of deficiencies.

Also, keep in mind that families that take pictures also tend to be families that seek out legal help if things go poorly.