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Why some nursing homes won't let families install 'granny cams' to check on their loved ones

So-called granny cams are increasingly used by families to keep an eye on their loved ones in long-term care homes, especially during the COVID-19 pandemic when in-person visits aren't possible. But some homes worry the cameras expose them to legal risk and have been hesitant to allow ones that record audio.

'I don't want Mom to feel that she's abandoned,' says one advocate of two-way audio cameras

Robin Nelson holds up pictures taken through a window of her 79-year-old mother, Ann, who lives in a long-term care facility in Lakefield, Ont. The home would not allow Nelson to install a 'granny cam' in her mother's room. (Jean-Francois Bisson/CBC)

When Robin Nelson found out she could no longer visit her mother at her long-term care facility because of COVID-19, her immediate worry wasn't her mother's susceptibility to the illness. It was the isolation. 

Ann Nelson, 79, lives at Extendicare Lakefield in Lakefield, Ont. She has suffered three strokes and has care needs that come along with that, including extra feeding time, since she can't swallow.

But Robin Nelson said her mother also needs human contact and the peace of mind of knowing her daughter is there for her.

That's why, Nelson said, she wanted to install a two-way audio camera in her mother's room, so that even though she wouldn't be able to help with her care every day, she could still check in to make sure she was breathing clearly and to let her know her family was there.

But the home wouldn't allow it. 

"I know how busy they are," Nelson said. "It's not that I'm concerned about the basic care at this home. But ... my mom's needs are high. She's very fragile. She's at constant risk of choking.

Extendicare Lakefield, an Ontario long-term care home located 150 kilometres east of Toronto, said it doesn’t allow cameras with audio recording functionality to be installed in residents’ rooms. (Jean-Francois Bisson/CBC)

"With a two-way talk granny cam, I'd be able to see my mom 24 hours a day, and I'd be able to talk to her whenever. I need to see her face. I need to see her one hand, her right hand that moves."

Extendicare, one of Canada's largest providers of long-term care, owns or manages more than 100 homes in at least five provinces.

When asked by CBC about Nelson's case, the company said in an email, "While we try to accommodate the interests of our residents and families when we can, in this instance, we need to take into account applicable law and our obligations to and the rights of others."

The concern in some long-term care homes is that if the resident leaves the room, there is the potential for the camera to record two people who enter the room without their consent, which, they fear, could violate the law around recording private conversations. 

The home told Nelson the camera she gave them was not allowed because it could record audio. She offered to disable the audio when she wasn't interacting with her mom, but the home said they would only be willing to accommodate a video camera that couldn't record audio.

"It has been our position that there are legal implications surrounding the equipment and capabilities that have prevented the installation," said Dawn Baldwin, executive director of Extendicare Lakefield, in an email to Nelson.

"I am sorry that we could not come to the resolution you were looking for around the camera."

'Granny cams' more common

So-called granny cams are increasingly used by families to keep an eye on their loved ones in long-term care homes. 

At first, Nelson said, Extendicare Lakefield seemed amenable to the idea. At the request of the home, Nelson had a technician install personal Wi-Fi in her mother's room so the camera wouldn't use the home's Wi-Fi, and Nelson purchased a camera.

Everything was set up, and the administrators had the camera. All that was left to do was plug it in. But then the home decided not to activate it. 

Emails between Extendicare and Nelson indicated that Extendicare would accept an Axis M30 camera in the room. They described the camera as having no audio recording capabilities, no two-way communication function and ability to record video to a local memory card instead of live streaming it.

Ann Nelson was active and still driving her golf cart until a third stroke left her in a wheelchair. Her daughter Robin says that Nelson can no longer use a telephone or press a call bell. (Submitted by Robin Nelson)

Nelson was not happy with this compromise, especially since she isn't allowed inside the home during the pandemic to retrieve the SD cards.

"The camera isn't about just monitoring her care," she said. "The camera is about being able to engage her, talk to her, coach her, so ... she doesn't feel alone."

Baldwin at Extendicare told CBC in an email that the home "will continue to work respectfully with Ms. Nelson toward a solution that is acceptable."

"We are happy to continue co-ordinating daily Skype calls over the lunch hour and window visits for Ms. Nelson and her family, which we know are hugely important for all our residents and families to keep spirits up."

The home also told CBC it would be willing to accommodate an Amazon Echo, which allows two-way communication "without audio recording capabilities."

WATCH | Robin Nelson wants to install a two-way audio camera in her mom's room at the long-term care facility

Robin Nelson has been fighting to put a camera in her mother’s room at an Ontario long-term care home to monitor her care and communicate with her, but the home won’t allow it. 2:11

But Nelson said she fears the home will renege on that compromise after she buys one, since the Echo does technically have capacity to store audio, which seems to go against the home's policy.

'An absolute necessity'

Meanwhile, 300 km away in Ottawa, Diana Pepin said she can't imagine getting through the pandemic without her granny camera. She has had one installed in her mother's room at the Peter D. Clark Long Term Care Centre to keep an eye on her care since 2017.

Pepin originally had the audio switched off but turned it on after an illness put her 86-year-old mother, Viola, in the hospital. Pepin wanted to be able to monitor her breathing as she recovered. 

Pepin spoke to CBC's Marketplace in 2018 about the abuse she discovered when she reviewed the camera's recordings.

"Die, die, you bitch. You've got to die now," said one of the personal support workers to her mother as she dressed her.

The outburst led to the worker being fired, along with two other staffers who witnessed the abuse and did not report it.

Pepin has since become something of an advocate for the use of cameras as a tool to help improve care when long-term care residents are unable to speak for themselves.

Diana Pepin holds an image of her mother captured by a camera she installed in her nursing home room in 2017. Pepin said she’s relieved to be able to see her mother during the lockdown. (Submitted by Diana Pepin)

"I don't know how many people I have told to get that camera in the room," she said. "It's an absolute necessity."

Pepin said the camera helps her ensure staff are following safety protocols in her mother's room and can intervene if she sees something she thinks might put her mother at risk.

But even with the camera in the room, Pepin shares some of Robin Nelson's worries about her mother's mental health now that she can't be in the home every day.

"I have no idea what she's hearing or if it's even audible," Pepin said. "I don't want Mom to feel that she's abandoned."

Legal confusion over audio recording

While granny cams are becoming more common, and are permitted in many care homes, the use of audio recording is often a point of confusion and legal debate.

The Advocacy Centre for the Elderly in Toronto supports the use of the cameras, but its policy, dating from 2013, states "it is not recommended that 'granny cams' have an audio function."

"It is an offence under the Criminal Code to record a private conversation without the consent of the party," the policy says. "The audio component could potentially record a conversation between a roommate and their visitors or two staff members having a conversation in the room."

The law generally states that you're not allowed to record a conversation without consent unless you are an active participant in that conversation. 

Daniel Nassrallah, an Ottawa lawyer and advocate, said he disagrees that this law would apply in residents' rooms. In fact, he advises his clients — including Pepin — to install cameras with audio functionality in their loved ones' rooms to monitor their care.

Daniel Nassrallah, an Ottawa-based lawyer, said he’s heard from half a dozen clients in the last year who have received pushback from long-term care homes about the use of cameras in residents’ rooms. (CBC)

Yet he said he's had half a dozen clients in the last year who have received pushback from homes about the use of cameras.

He said he defends the use of cameras for two reasons. First, he said, the law is specific to recording without consent, so if the home makes it clear that there is recording in the room, there shouldn't be a legal issue.

He said the camera doesn't have to be hidden, and homes can put signs up on the door so anyone entering the room is reminded that there is a camera recording at all times.

'These cameras are legal'

Second, he said that even if there was no sign, staff don't have a reasonable expectation of privacy when they're in a resident's room. 

"We install cameras not necessarily with the approval of [care home] management, but we hope to obtain their blessing," Nassrallah said. "These cameras are legal. From the video side of it, as well as the audio side of it."

Nassrallah said his position is supported by a Quebec regulation as well as case law out of Quebec from 2017 that specifically establishes the resident's room as their home and their power of attorney's right to install audio/video recording devices.

The union representing long-term care workers in Quebec challenged that ruling at the federal level, but the Supreme Court of Canada rejected the appeal, which, Nassrallah said, means it could be accepted as persuasive common law in Ontario.

Extendicare's legal department told CBC the Supreme Court's rejection shouldn't be read as an endorsement of the Quebec ruling since the court doesn't give reasons for why it rejects appeals.

Urging 'exception' during pandemic

The Ontario Personal Support Workers' Association, which represents 41,000 care workers across the province, said its members support the right of relatives to install cameras.

Miranda Ferrier, president of OPSWA, said she thinks homes should be especially accommodating during this time of crisis.

"I think there should be an exception made when there is a COVID-19 outbreak and [families] can't go in and see their loved one," she said. "If a family wants to put in a two-way audio where they can actually talk to their loved ones and check in on them and so forth, what do we care?"

She suggested it could even take some of the workload off PSWs in terms of trying to keep a resident connected with their family.

"We have to think about the well-being of all residents in these long-term care homes," she said.

Robin Nelson has started a petition, which has more than 700 signatures so far, asking for Ontario's Ministry of Health and Long-Term Care to explicitly allow the use of two-way talk cameras in the Long-term Care Homes Act.

She said she'll continue to fight for the use of the camera in her mother's home.

"This isn't about a granny cam, It's about ... the ill effects of isolation and how it's affecting seniors in a far greater number than COVID-19 right now."

Across the country, Canadian families have been restricted to window visits with their loved ones as nursing homes try to contain the spread of the novel coronavirus. (Ivanoh Demers/Radio-Canada)

Please send confidential tips to Katie.Pedersen@cbc.ca.

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