Mom appeared frequently in a new website from her nursing home. She has Alzheimer's, is informed consent required?

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My mother has been diagnosed with moderate Alzheimer's and has several other health related issues. A new website from the nursing home in Ohio features her more than any other resident. The home has tried to evict her three times without success. I know she would never have consented to be pictured if she understood the eviction attempts. I was never contacted regarding her appearance, and I know if she were told she was being removed it would be very hurtful to her. The website is designed to market the home, are there steps I can take against the home without my mother being impacted. I chose Elder Law as the topic, but I also consider this either fraud or elder abuse.

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I'd check with the ombudsman for the home. Go to the state website and look up nursing home ombudsman for the ZIP code of the home - or go to www.ltcombudsman.org. This person is your mother's representative. He or she could lead you to some conclusions.

My opinion is that informed consent should be mandatory for this kind of exposure. Since your mother's diagnosis is Alzheimer's, only her representative should be able to give consent. Please let us know how this goes.
Carol
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Review the admissions contract. There could be a sentence within in that allows for "fair use" of residents images. Now you can as DPOA send them a notice that you no longer allow for this to happen. You also need to include in this that a notification is to be sent to any ad agency, PR firm, marketing group and to any & all photographers or others who have taken images.

One other problem will be that if mom is cute (& photogenic) is that the image will be sold for stock. Like the images on this site are probably stock images purchased for a set usage fee. Images of attractive elderly is very much a commodity. For photographers selling images for stock is done routinely and files downloaded to the list serves they belong to (like shutter stock, Getty). In theory there should be a model release on file for the person before images sold if the shot was done on private property (& property release too). This is why it's important that notifications be sent out.

Another issue is that if the image is on a website, is that anyone clever can lasso the image and use it. Cute mom in pretty robe can be in an ad in another state. You have to become Nancy Drew to shut this down.
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It's so sad that everything a senior does, seems to need an attorney!
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Don't know if this would help, but apparently this type of thing is quite common as same happened to us. Dad lived at home and had end stage Alz. 3 weeks before his death last November we hired a home health agency/aide from Home Instead Senior Care to bathe him. The aide was excellent with him. Then we found out during her 3rd visit that during that visit she put him outside on the lanai and photographed him. This was the WORST time of his life and would NEVER have wanted to be photographed! The aide, NEVER asked mother's (who was in taking a nap at the time as she was recovering from a recent TIA) or my permission (I was there that day also) to do this. The only way I found out about it was when I overheard her while sitting at our dining room table telling her manager (who also happened to be there that day) about the great pics she'd just taken of dad. I interrupted their conversation to ask WHAT were talking about. And she told me...and then added that she'd just won a cruise for Caregiver of the Year (were the pics to be used as part of a slideshow during the cruise....???) I was totally shocked - AND livid - but I bit my tongue. After they left I told mom what had happened and SHE was livid also. The manager was to return the next day about something else and when he arrived I met him OUTSIDE and promptly FIRED his agency. He was defensive but knew he didn't have a leg to stand on and left. The top guy at the agency called and emailed me and was all apologies, etc. and I demanded the pics back (there were 2 taken, and they 'couldn't find' the second one). I told him they'd better NOT show up ANYWHERE in this entire universe or he'd be sued! As it is I've threatened him (am currently doing the paperwork) with a HIPAA violation. No one else should have to go through this. I share this with you to let you know you are NOT alone - apparently these elder care institutions have no respect for folks who cannot give informed consent and will use them for their own (advertising) ends. I WILL make sure this agency - Home Instead Senior Care - never does this again AND is cited for HIPAA violations.
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Igloo is right, you sign the publicity release during admittance. read the papers.
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Interesting, I received brochures from some homemaker agencies, and 2 of them used the same image! Was so hard to figure that out!
But seriously. You might not be able to confiscate all the materials already printed, but you could prevent further "use" of those images. It would be up to you to be the watchdog however, for any further use.....
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Just curious, if an image of someone is used without permission, what would be the grounds of the lawsuit? I realize out of common decency that one should get permission to use a photo. Yes, I would be upset if said photo isn't flattering or something we know our elder would not want published. Then there are people who love to have their photos taken, the more the merrier.

Let's extend this further.... could our friends, co-workers, and relatives sue us for using their photos on Facebook if we didn't get permission, or we sue them? I realize these photos aren't being used for *profit* in most cases.

I know in the business world, if someone took my photo and used it where it would damage my career, I could sue for loss business, but that would be tough to prove, unless I had cancelled contracts due to said assumption of the photo.

Every time we are in the outside world, doing our routine shopping or even visiting sights, someone somewhere has taken our photo with their cellphone or iPhone. Just food for thought.
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As a magazine publisher, I always get written permission if I am photographing people for publicity. It's the law. A release must be signed. Sometimes I will use the blurr on my software to blur out the face so it won't be recognized by anybody if it's someone in the background.
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Freqflyer- if image is being used to promote something that produces revenue, then you need a release to use it unless the image is taken at a public place &/or within a public event. So like if my local gvmt does a Easter egg roll at city park for free, anyone can shoot images at it and use at will. It's fair use. If your 15 yr old shows her tata's on Chartres st during Mardi Gras & it goes viral, it's fair use even though she's underage jail bait. As its public street, public free event. But if I pay to go to an event, like jazz fest at the Fairgrounds, I have an reasonable expectation of privacy. So a release is needed unless on the ticket or within the "contract of carriage" statement for the event. by buying the ticket or entering the event you allow for fair use. Most often there will be signage on this.

Noor75 - what happened to you is beyond the pale. Really follow up on this. home instead is franchised, I think, so there are deeper pockets to go after. Whatever you send, do it certified mail.

You know most contracts have a fair use statement in them. Like our sons school has fair use in the admissions contract. Most programs that get federal funding require some sort of notification of fair use. 1 of our sons h.s. classes has a dept of navy grant, so teacher sent a blanket email to all parents that images taken this school year were allowed unless parents responded back not to allow. Both of my moms NH & her IL had a fair use statement within the multi page contract. You can strike through this part too. Now make sure you get a copy of all the paperwork!
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In California they are very strict about pictures of residences. I sing with a small group that goes to care facilities and does gospel music concerts (free). We once asked about taking a picture of our group in one home and they said that we couldn't take pictures inside at all. (Our church wanted a few pictures or video to show what we did, so we've taken a few in an entry way or exterior. One place did allow us to take a picture with a resident who was a family member of one of our people.)
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