Major UK Care Home Operator considers using cameras in care homes
In the light of the abuse revealed by hidden cameras installed by the relatives of a patient in one of its care homes, HC One, which operates 227 homes across the UK, has announced plans to offer to install CCTV in the rooms of patients.
The use, particularly by relatives, of covert surveillance techniques as a last resort to uncover evidence of abuse, is something that has often been in the headlines recently. In addition, as part of a wide-ranging review of its licencing and inspection regime, the Care Quality Commission has made some far-reaching proposals for the future regulation of adult social care, including the possible use of covert surveillance techniques.
All of this has highlighted not only the frustration and anger felt by many that their complaints are not being listened to, but also the difficulties faced by providers and regulators in investigating these claims. It is challenging to collate evidence of abuse in the absence of such techniques because, in many cases, victims are unable to speak out themselves.
Although incidents of abuse remain the exception, the cases which have come to light since the watershed represented by the Winterbourne View scandal have attracted a lot of publicity and criticism. This has, in turn, undoubtedly had an adverse impact on public confidence in the wider care industry. The fact that both the regulator and operators are considering the use of surveillance measures which, until recently, would have been unthinkable is a clear indication of the degree of concern within the sector.
This note examines a number of the issues that these proposals raise for care providers considering similar action and the hurdles which will have to be overcome in order to make them a reality.
Surveillance and Data Protection
The use of CCTV systems by care providers for the purpose of staff and patient surveillance will be subject to the requirements of the Data Protection Act 1998 ("DPA").
The DPA covers information that relates to an individual. For information to relate to an individual, it has to affect their privacy. To help determine whether CCTV footage relates to an individual, two matters must be considered:
- A person had to be the focus of the information;
- The information must tell you something significant about that person
If a particular person is intended to be the focus of CCTV and the information from the CCTV tells you something significant about that person, the data from the CCTV will be covered by the DPA and the operator’s use of CCTV must comply with the provisions of the DPA.
The Information Commissioner has published a helpful code of practice as to the use of CCTV which ought to be considered by care providers considering its installation. This code contains a number of recommendations based on the data protection principles contained in the DPA. Several of these require special consideration in the context of the use of CCTV in a care setting:
- The use of CCTV should be carefully considered before being implemented, balancing the adverse impacts of its use (for example, on the dignity and privacy of the patient) against its benefits.
- Are there alternatives which could be used to address the problem (for example, additional staff training) and is it proportionate to the issue it is intended to deal with?
In the light of these recommendations, it is debateable whether, in the absence of a problem affecting a particular operator or location, the Information Commissioner would be satisfied that the use of CCTV is a justifiable step to take. Similar difficulties are also likely to be encountered where CCTV is adopted as a long-term solution.
It is also important to bear in mind that the DPA also grants rights to those whose data is being processed. In this case, patients, staff and visitors. Providers who install CCTV and fail to comply with the DPA could find themselves the subject of enforcement action by the Information Commissioner.
It is likely that, given the nature of a care setting, express written consent will be sought from both patients and employees. Visitors should also be warned of the presence of CCTV so that they have notice that they will be entering areas where surveillance is being carried out.
As far as all affected parties are concerned, it would be good practice for the use of CCTV to be supported by a defined policy, in which providers would describe its purpose, how it is to be used and how it will achieve compliance with the DPA.
Great care will have to be taken as far as patients without capacity are concerned. Only those individuals with the correct authority could provide consent on behalf of the patient. If a registered Health and Welfare Lasting Power of Attorney is in place then the appointed attorney could probably provide consent.
The scope of the old style Enduring Power of Attorney or current Financial and Property Affairs Lasting Power of Attorney would not be sufficient to provide consent. In any event an application to the Court of Protection may be required to obtain approval on behalf of the patient. This certainly would be required where the patient does not have a Health and Welfare Lasting Power of Attorney in place.
The circumstances under which it would be appropriate for a care provider to install covert surveillance measures without consent are very limited. As such, it is more likely that the use of CCTV will be considered more as an overt and general offering rather than as a clandestine step.
However, it is possible that a care provider faced with allegations of abuse may consider using covert or hidden cameras to properly investigate the claims made.
As the very nature of hidden cameras means that consent is unlikely to have been obtained and no warnings given, a provider will have to look at alternative means of justifying that the collection of the footage was fair and lawful. The Information Commissioner is clear that covert monitoring is only acceptable under exceptional circumstances.
Providers will need to have considered carefully:
- the gravity of any allegations
- any alternative to the use of a hidden camera
- the circumstances under which the camera would be used (for example its location and duration of use) and to have properly concluded that the benefits of using of a hidden camera would outweigh its adverse impacts on those it is surveying.
Dignity and Privacy
Given established case law, it is very unlikely that an independent sector provider will be a "public authority" for the purposes of the Human Rights Act 1998 ("HRA"). As such, the use of CCTV is unlikely to lead to actions being taken under the HRA against a provider under Article 8 of the European Convention of Human Rights. Article 8 offers general protection for a person’s private and family life. This right affects a large number of areas, including the use of surveillance.
However, as the UK courts are obliged to behave compatibly with convention rights, compliance with Article 8 is an issue that the Courts would be obliged to take into account in the context of a wider claim by either a patient or an employee against a provider (for example, in connection with a breach of contract claim).
The right to privacy is qualified and interference can be justified if it is:
- In accordance with law; and
- In the interests of legitimate objectives identified in Article 8(2); and
- Necessary in a democratic society.
For surveillance in care homes to satisfy the first condition, the provider would have to have a sound legal basis for using the techniques that are proposed. As such, the provider will need to demonstrate that it complied with the DPA.
Once the first condition is satisfied, it is likely that the provider will be able to satisfy the second by demonstrating that they are acting in the interests of public safety, prevention of crime, protection of health and morals and the protection of rights of others. However, it may be difficult to satisfy this requirement where surveillance techniques are used as part of a general policy. The provider would have to have grounds which would indicate that it was responding to circumstances where issues of public safety etc. are at stake.
To satisfy the third condition, the provider will have to demonstrate that the use of cameras is a proportionate means to achieving a result. In considering this, the Courts will look at whether the provider could have used an alternative and less intrusive method to achieve the same result.This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.