The regulation provides that users of long-term care accommodation centers (CHSLDs) or their representative can now install surveillance devices, including cameras, in their room in CHSLD. Surveillance devices are not limited to cameras, but include “any mechanism, device or technological means enabling images or sounds to be captured and used for surveillance purposes” (Section 2).
The installation of cameras or another monitoring device is only permitted for the purpose of ensuring (section 4):
- User safety;
- The safety of the user’s property;
- The quality of care and services offered to the user;
- The identification of a case of mistreatment of the user.
The regulation provides certain conditions that must be observed when installing a camera:
- it may or may not be concealed (Section 1);
- it must be installed by the user, or their representative, with the consent of the user, unless such consent is impossible to obtain (section 3);
- in a room where several users are lodged, the user, or their representative, who installs it, must obtain the consent of the other users lodged in the same room, except in cases where the ends sought by the installation of the device justify not obtaining such consent (art 7);
- in a room where several users are lodged, it must not have the purpose of capturing the images or sounds of other lodged users (section 7);
- it must not be used for the purpose of capturing images or sounds coming from outside the user’s room (section 8 al.1);
- the capture of images and sounds coming from the bathroom is only allowed if the ends sought justify it, for example, when abuse in the context of hygiene care in the bathroom is suspected (section 8 al.2);
- its installation must not modify the property belonging to the establishment without its consent (section 9);
- its installation must not entail costs for the establishment without its consent (section 10).
The regulation also provides that it is permitted to use the camera to record images or sounds (Section 6). The user or their representative is then responsible for ensuring the confidentiality and security of the images and sounds captured by the recording (section 12).
The regulation sets out certain restrictions for the use of the recordings. The recordings can only be used to ensure the safety of the user or their property, or the quality of care and services provided to them (Section 13). The recordings could not be used by the establishment, for example, as a means of monitoring the comings and goings of its employees.
The communication of the recordings must be done in such a way as to protect the identity of the persons whose image or voice has been captured (Section 14). This restriction does not apply in cases where the recordings are communicated to the following:
- the establishment that hosts the user;
- the local Service Quality and Complaints Commissioner, or the Ombudsman;
- an agency which is responsible for preventing, detecting or punishing crime or breaking of laws under the Law, when recordings are necessary for the purposes of a prosecution for breaking a law
The regulation limits the duration of the use of the camera and the storage of its recordings. In particular, it provides that:
- the use of the camera must not be carried out continuously, except when the ends sought by the use justify it (section 5);
- the camera must be removed when its use is no longer necessary (section 11 al.1);
- the conservation of records is only permitted if it is necessary for the safety of the user or of his property, or in order to ensure the quality of the care and services offered (section 15 al.1)
The need to use the camera and store its recordings must be reassessed by the user or their representative at least every six months (Sect.11(2) and sect.15(2)).
The regulation does not provide for any reporting obligation to the establishment nor does it provide for the establishment to be able to evaluate by itself the necessity of using the camera or storing the recordings. The user or their representative does not have to ask the establishment for permission to install a camera, to continue its use or to store the recordings obtained. The user or their representative will not have to inform the establishment beforehand or during the process. According to the regulation, only the user or their representative is able to assess the need to use the camera, to continue its use or to store the recordings.
Finally, the regulation sets out certain obligations for establishments operating a long-term care accommodation center, namely:
- inform the user, upon admission, of the rules applicable to the use of cameras and offer them the support necessary to comply (Section 21);
- provide the necessary support to the user or their representative to comply with the regulations, if a breach is found (Section 23);
- adequately indicate the possible presence of monitoring devices in the facilities where such a center is operated (Section 22 al.1)
In other words, the CHSLD has the obligation to visibly indicate to anyone entering the establishment that cameras are possibly installed there (Section 22 para. 2). Such an indication may take the form of a general display at the entrance of the CHSLD. However, this should not allow the location of a camera to be identified (Section 22 para. 3). It is therefore not permitted to maintain a display of a list of rooms which are equipped with cameras or to label the doors of the users’ rooms that are equipped with cameras.
Section 83 of the Loi sur les services de santé et les services sociaux provides that the mission of a long-term accommodation care center is to provide a substitute living environment for its users. The regulation is part of this philosophy as the user residing in a CHSLD is in a substitute living environment to their home. The rights of the user should be similar to those which they had when they were at home, where they would be allowed to install cameras without obtaining permission from visitors or owners.
Overall, this regulation is a victory for users, who will be able to benefit from an additional protection mechanism to ensure their security, protect their property against theft and breakage, and offer them an additional tool against abuse.