A&A: Recording at a Board and Care Facility without Permission

Recording at a Board and Care Facility without Permission

Q: My mother lives in a board and care facility.  I have power of attorney.  She is mentally capable, but is diagnosed bi-polar and is experiencing beginning stages of dementia.  She has a private room.  The facility receives funds from CEI for my Mom’s B&C.- a Medicare/Medicaid managed program. May I legally use video camera/audio equipment in the room where my Mom resides?  Either with their knowledge or without?

A: We have reviewed a number of cases that, while not exactly on point, may shed some light on whether you may be able to use video/audio equipment in your mother’s room in the private facility she resides.  The question that must be answered is whether your mother, or someone else in that facility, has a reasonable expectation of privacy from the outside nonpublic world.

As a general matter, you would need the consent of your mother to audio and videotape the inside of her private room.  See Carter v. New York Times, 2002 Cal. App. Unpublished Lexis 501 (2001) (finding that a patient’s right to privacy was violated when camera crew members audio and videotaped inside the hospital room while the patient was being treated); See also Estate of Berthiaume v. Pratt, M.D. (Me. 1976) 365
A.2d 792, 795 [86 A.L.R.3d 365] (surgeon who had treated cancer patient committed actionable intrusion by photographing him in hospital bed against his will as he lay dying).  Although your mom is not in a hospital, these hospital cases provide some guidance on how courts look at the reasonable expectation of privacy in these types of settings.

However, if you have power of attorney because your mother’s condition prevents her from, say, entering into contracts on her own, then you probably would not need her consent (which is a form of oral contract).

Either way, a second issue that you want to look at is whether the nurses/employees of the private facility have a right to claim that their right to privacy was invaded by your actions if they do not consent to the audio/video equipment in your mother’s room.  While there is no authority on point, a case from the California Supreme Court,
People v. Escudero, 23 Cal. 3d 800 (1979), may be helpful in understanding the rights that an owner of a facility or building have over a room (such as a hotel room) when the room is occupied by someone else.  In People v. Escudero, the California Supreme Court analyzed the general rule that a landlord has no authority to consent to a police entry of premises occupied by a tenant and how such rule has been applied to other settings.  For example, the court stated that this general rule applies “not only when the tenant leases an entire detached house, but also when he rents an apartment, an enclosed garage, or a storage locker in a bowling alley.”  The rule does not depend “on the duration of the tenancy: it applies both to a long-term lessee and to a transient guest who takes a room, however briefly, in a hotel or a motel.”  In each of those instances, the court concluded, “the owner voluntarily gives up the right to occupy the premises for the period of the tenancy, and the tenant in turn acquires a legitimate expectation of privacy in his use or enjoyment of the premises for the same period.” The court went on to note, however, that the privacy is not absolute: “the tenant is generally deemed to give implied consent to reasonable entries by the owner or his agents, but only for certain narrowly limited purposes relating to the owner’s interest in the property.” With respect to a hotel room, the court noted, “a hotel guest is deemed to impliedly consent to hotel employees’ entering his room at reasonable times” but only to perform certain limited services (i.e., janitorial, maid, or repair services).  The owner cannot enter the room (or give consent for others to enter the room) for other than these limited purposes.

Applying the court’s analysis to your situation, it would follow that the nurses/employees in the private facility your mother resides have only very limited rights in your mother’s room (i.e., providing medical, janitorial, or maid services).  They would have no rights to enter the room other than for these limited purposes.  The right to give consent to audio/videotape your mother’s room, therefore, would seem to be your mother’s (or someone with power of attorney).

As you can see, there is no bright line rule with these types of cases. If you are able to, your safest course is to get the consent of the facility and that of your mother’s as well.  Absent that, you may risk facing some type of tort claim that may or may not prove successful in the end.