Care home briefing 88 – Secret filming in care homes and hospitals: a legal perspective

Undercover ‘exposés’ of health sector ‘scandals’ seem to be on the increase. This may appear to breach confidentiality and employment contracts so will the courts grant injunctions to prevent the use of such material?

In a recent care home case[1] inspections of the home had been carried out by the relevant bodies, and shortcomings in the standard of care provided by the home had been identified, but (in the BBC’s view) these had not been acted upon. The Welsh arm of the BBC wished to make a programme in part suggesting that the regulation of care homes in Wales was not working, and wanted to use the home as evidence of this.

The BBC therefore sent an undercover reporter to the home, who conducted secret filming. The footage obtained was then used to make a programme entitled, ‘Who cares in Wales?’ The home applied to restrain the broadcast of the programme in order to protect the privacy rights of its residents under the Human Rights Act 1998. The BBC however argued that it would use pixilation so as to prevent any residents from being identified. Therefore, the infringement of privacy rights would be removed or at least ameliorated by this process. It argued that the poor standards at the home, together with the failings in regulation, were in the public interest and the broadcast was therefore justified on this basis. Additionally, the BBC argued that the Human Rights Act 1998 conferred on them rights of freedom of expression, and that in making the programme it had complied with both its own and Ofcom’s broadcasting guidelines.

The Judge in this case was required to weigh up the competing rights of the BBC on one hand and the residents on the other and concluded that there were serious factors which justified or outbalanced the infringement of the residents’ privacy rights.

He said that the “general areas of standards in care homes, and the ability of the regulator to maintain them, are matters which are firmly in the territory of the public interest…So the question then becomes whether the matters relied on by the BBC are matters which legitimately raise that public interest…to such an extent… which would justify the clandestine filming which involves the home of the residents and the residents themselves. It seems to me to be firmly arguable that they do.”[2] The injunction was not therefore granted.

To a healthcare professional, patient confidentiality is one of the cardinal principles that should only be breached in the most exceptional of circumstances. It is therefore often difficult for such professionals to understand how secret footage of patients in care homes and hospitals, obtained without their consent, can subsequently be used in a documentary programme that is broadcast to the nation. However, the above case proves that it can be allowed.

Ofcom’s Broadcasting Code states the following about secret filming and recordings:

Surreptitious filming or recording should only be used where it is warranted. Normally, it will only be warranted if:

  • there is prima facie evidence of a story in the public interest; and
  • there are reasonable grounds to suspect that further material evidence could be obtained; and
  • it is necessary to the credibility and authenticity of the programme.[3]

The Code therefore offers some protection to patients or residents in care homes and hospitals, who are the subject of secret filming, in that there must be evidence of a story in the public interest before the filming can start. There is no exhaustive definition of what constitutes the public interest, but it is generally accepted to include exposing or detecting crime, corruption, antisocial behaviour or injustice; protecting public health or safety and disclosing incompetence, negligence or dereliction of duty, that affects others.[4]

However, if there is a dispute over whether the story is sufficiently in the public interest to justify an invasion of the residents’ or patients’ rights to privacy, then it may be left to a Judge to decide this point in court. This presents a problem, in that it is the usual practice of the media not to disclose material in advance of publication unless it wants to, and the court has respected that conduct.[5] Therefore, the Judge will often have to decide the matter without having seen the secret footage in question.

Another point to note is that it does not appear to matter how the secret footage is obtained in the first place. For example, in the BKM case above, it was not disputed that the undercover journalist’s access to the care home was obtained fraudulently, and that she filmed the residents without their consent.[6] Nevertheless, the material was still broadcast.

However, the hearing at the Nursing and Midwifery Council (NMC) in relation to nurse Margaret Haywood indicates that there may be serious repercussions for nurses who undertake secret filming in conjunction with the media.

Ms Haywood participated in covert filming between November 2004 and May 2005, whilst working as a registered nurse on an acute medical ward at Brighton and Sussex University NHS Trust. The filming took place without consent being obtained from the persons being filmed, or their families or friends. The films were then handed to the BBC’s Panorama team, and used in a documentary entitled ‘Undercover Nurse’, which aimed to expose the poor nursing care provided to patients at that particular hospital.

The NMC ruled that, in giving the secret footage to the Panorama team, Ms Haywood breached patient confidentiality and the nursing code of professional conduct. Although the code allows for disclosures to be made where they can be justified in the public interest (usually where disclosure is essential to protect the patient from risk of significant harm), the NMC said that Ms Haywood should have exhausted all other avenues of addressing inadequacies on the ward before going to the media, e.g. making representations to senior management first.

We can provide urgent advice on confidentiality issues, even outside ordinary office hours through our 24 hour health law advice line.

Andrew Parsons
andrew.parsons@rlb-law.com
© RadcliffesLeBrasseur


Footnotes

1. BKM Ltd v British Broadcasting Corporation [2009] All ER (D) 24
2. Mr Justice Mann, BKM Ltd v British Broadcasting Corporation (ibid), at para 35
3. Rule 8.13 of The Ofcom Broadcasting Code (2009)
4. Independent Producer Handbook, Chapter 4D “Privacy Ofcom Broadcasting Code” (p.82)
5. See Re. Roddy [2004] EMLR 127, para 88
6. Alison Castrey and Madeleine Heal, “Secret filming and the case law that subsequently arises” (March 2010)


Autism Consultation Announced

Following the enactment of the Autism Act, The Care Services Minister announced on 29 July a 12 week consultation process following the publication of the strategy for adults with autism. This seeks views on:

  • Diagnosis
  • Raising awareness
  • Training
  • Needs assessment
  • Provision of Services
  • Local Leadership in relation to the provision of care for those with autism

The consultation runs until 22 October 2010 and may be downloaded on www.dh.gov.uk


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur 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.