Québec Introduces New Surveillance Rules for Long-Term Care Facilities

New regulations approved by the Québec government which outline the installation and use of surveillance mechanism in long-term care facilities will come into effect on March 7. The regulation is a part of the adoption of Bill 115, An Act to Combat Maltreatment of Seniors and Other Persons of Full Age in Vulnerable Situations, which was sanctioned on May 30, 2017. The regulation will affect the obligations of businesses that own or operate long-term care homes in Québec.

What You Need To Know

• Who can install surveillance? Only residents of long-term care homes in Québec and their representatives are permitted to install surveillance mechanisms.
• Purpose of installation. The installation of a surveillance mechanism should only be permitted for the purpose of ensuring the residents' safety, the safety of their belongings or to verify the quality of the care and services offered, in particular to identify a case of abuse.
• Privacy concerns. The surveillance mechanism must be installed and directed to ensure the privacy of other residents. It should not be used to capture images or sounds from others residents in a shared room (except with their consent), in a general public area or a bathroom (except when justified).

Preliminary Challenges to the New Regulations

Since the Regulations have been tabled, trade unions have raised some concerns about the potential infringements of employees' rights to privacy and fair working conditions. In a June 2017 decision, the Québec Court of Appeal weighed the privacy rights of care home employees against the rights of the residents. The Court held that a resident's room is akin to their domicile and as such they have the same rights and protections as any other person in their home. The Court also confirmed that employees' rights to just and reasonable working conditions do not prohibit the use of surveillance mechanisms in all circumstances. An appeal of this decision has been lodged with the Supreme Court of Canada.

Next Steps for Employers

Unless the Supreme Court strikes down the legislation, businesses that own or operate long-term care homes in Québec will need to comply with the Regulations starting this March. This may require a review of existing privacy policies applicable to both employees and residents, the implementation of new procedures, and employee training. Businesses operating across Canada may also need to harmonize their patient and employee policies across provinces.

With respect to residents, policies regarding the installation, placement and management of surveillance tools, as well as the resolution of disputes about privacy of other patients should be reviewed or implemented. Residents or their representations should be informed of such policies at the time of admission to a long-term care facility, and should be able to access updated policies throughout their stay.

Employee policies should also reflect the balancing of privacy interests that the Court of Appeal has considered, by informing employees of the rules around the use of surveillance mechanisms, resources for employee concerns about such devices and their role in addressing disputes between residents about surveillance activities.

Finally, care homes should inform visitors of the use of surveillance by residents, such as by placing a notice in a public area near the entrance to the facility that describes the practice and where questions may be directed. Importantly however, such notices should not indicate the location of any particular surveillance mechanism.

To discuss these issues, please contact the author(s).

This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.

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