Care home briefing 129 – CQC and hidden cameras in care homes
Secret filming has long been utilised by the media for “healthcare exposés”. We have previously commented on some of the legal issues arising.
The Care Quality Commission (CQC) has recently suggested that hidden cameras could assist in its regulatory function although it has acknowledged that appropriate safeguards would have to be in place. CQC will be consulting on this in Spring 2014 in order to consider the use of hidden cameras to address concerns over abuse and poor treatment in care homes.
The concept of a regulator undertaking its statutory inspection powers through the medium of covert surveillance raises interesting legal issues. Central amongst these will be whether CQC has any authority to proceed in this way. It is a creature of statute and there is no apparent right to do this set out in the legislation by which it is created and by which it operates. There must accordingly be a risk that such an approach could be challenged as being ultra vires.
If this proposal is implemented, who will be the first to challenge it?
Covert filming raises many legal issues including:
- Intrusion in the privacy rights of individuals recognised by Article 8 of the Human Rights Act
- Consent and the related difficult issues of capacity to consent, which is likely to be a particular concern in relation to many care home residents
- Issues arising under the Data Protection Act and common law confidentiality
- Compliance by CQC with the Regulation of Investigatory Powers Act 2000 which governs the use of covert surveillance by public bodies
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1. See RadcliffesLeBrasseur Care Home Briefing Number 86 “Secret Filming in Care Homes & Hospitals – The Legal Perspective” available through the Publications section of our website at www.rlb-law.com.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.