In George Orwell’s Nineteen Eighty-Four, the slogan: “Big Brother is Watching You” signified governmental monitoring as a means of control and suppression of will of the populace. With different motivations, Louisiana now grants nursing home residents and their families the right to install video systems to monitor the care given.
Pursuant to Act 596 of the 2018 Regular Session of the Louisiana Legislature (the “Virtual Visitation Act”), nursing homes may not prohibit such monitoring systems or retaliate against residents or families who want to install them. However, several requirements must be met to abide by the Act:
- The resident, or family if the resident lacks capacity, must provide notice of installation to the facility;
- Visual recordings must include date and time;
- The device must be stationary and fixed, not oscillating;
- Residents must pay all costs for installation, upkeep, and removal;
- Written consent is required from all roommates;
- Room changes are required if a roommate does not consent;
- Residents and applicants cannot be retaliated against for authorizing devices; and
- Signage must be installed at the front door of the facility (at the facility’s cost) and at the resident’s room (at the resident’s cost) advising of surveillance in the rooms.
Nursing homes must also provide forms to residents, or their legal guardians, outlining the ways the cameras can be installed. Under the Act, surveillance should be addressed at admission as a resident right. To promote compliance, the Act prohibits the use of any recordings in litigation if the device was installed or used without the nursing home’s knowledge or without adherence to the required forms. Additionally, compliance with the Act is a defense against lawsuits brought purely because monitoring devices are in use. This may be important because the use of such systems could arguably implicate the privacy rights of the residents.
“Big Brother” might not be watching, but the increase in affordable, high quality, surveillance cameras, coupled with the Virtual Visitation Act, means someone might be watching Granny.