Collating direct evidence to support a case of abuse has generally represented a significant hurdle to those concerned about care standards. In many cases relatives and whistle-blowers have felt that they have little alternative but to resort to covert filming which has had some spectacular results in identifying perpetrators and supporting criminal convictions.
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 RPs 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 advocating the use of surveillance measures which, until recently, would have been unthinkable is a clear indication of the degree of concern within the sector.
In the light of what would appear to be an endorsement of this approach by the CQC, what legal implications may arise if an RP considers adopting such a tactic?
Surveillance and Data Protection
The use of CCTV systems by RPs for the purpose of staff and resident surveillance will be subject to the requirements of the Data Protection Act 1998 ("DPA").
RPs considering the installation of CCTV should take the Information Commissioner’s code of practice on the use of CCTV into account, in particular carrying out an impact assessment to determine whether the adverse impacts of use (such as privacy intrusion of staff and residents) is outweighed by the benefits of use and also what alternatives to use of CCTV may exist.
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.
Given the nature of a care setting, express written consent will be sought from both residents 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 the RP 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 residents without capacity are concerned. Only those individuals with the correct authority could provide consent on behalf of the resident.
The circumstances under which it would be appropriate for an RP to install covert surveillance measures without consent are very limited. However, it is possible that an RP faced with allegations of abuse may consider using covert or hidden cameras to properly investigate the claims made.
The Information Commissioner is clear that covert monitoring is only acceptable under exceptional circumstances. As part of a detailed policy on covert surveillance, RPs will need to justify its use by demonstrating:
- 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
The susceptibility of RP activities to the provisions of the Human Rights Act 1998 ("HRA") is a subject that is worthy of a separate discussion, and cannot easily be summarised here. The Weaver decision showed that issue is complex and may turn on the individual circumstances of the case. However, at the very least RPs must be alive to the possibility that, in carrying out its activities at a housing scheme, they may be undertaking public functions that could place them within the ambit of Article 8 of the European Convention of Human Rights, which offers general protection for a person’s private and family life.
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 resident or an employee against an RP (for example, in connection with a breach of contract claim).
RPs should ensure as far as possible that the use of CCTV or covert surveillance does not infringe the rights of their employees. It is well established that use of covert surveillance by an employer can be justified in an investigation into serious misconduct and that an employee has no right to privacy when committing a criminal offence during work time. However RPs should exercise appropriate caution when considering whether there are less intrusive methods of investigation (such as increasing supervision) and that any information collected by means of CCTV or covert surveillance is only used for the purposes it was collected. It would not, for example, be appropriate to use surveillance footage to evidence poor performance where surveillance had been set up to investigate alleged physical abuse. In such circumstances, that evidence would be inadmissible in any disciplinary proceedings. Further, an employee may also be able to raise the inappropriate use of CCTV with the ICO as an infringement of his rights under the DPA as well as potentially pursuing a claim for constructive unfair dismissal.
The decision to install CCTV, either overtly or covertly should not be taken lightly. However, the current high profile of abuse cases has promoted the issue to a level where it is very clearly on the radar of residents and their relatives. Clearly, a well-documented policy that has had the benefit of suitable consultation with all stakeholders is far preferable to exposure to the “self-help” action of relatives and residents, taking matters into their own hands and installing their own equipment in flats. Having the policy in the first place is a prudent first step, but suitable training and awareness for staff, and, more importantly, following its guidance, are equally as important.
For more information please contact Stephen Cairns, Senior Associate, Employment.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.