Care home briefing 150 – The use of CCTV in care homes: the legal issues

The extent to which the use of surveillance cameras in Care Homes is acceptable has been an issue for debate in the care home sector and the media, often in the context of cases where Care Homes have been seen to have failed their residents. Some supporters of CCTV have welcomed it as a way of providing an additional protection to vulnerable residents, but opponents point to the adverse implications for the privacy and dignity of residents, particularly if filming is proposed to include bedroom areas. The debate has included discussion on whether covert filming can ever be appropriate in Care Homes, but this briefing focuses on the use of non-covert cameras in Care Homes.

The Care Quality Commission (CQC) has considered the issues raised in the use of surveillance in care services and published information for providers on using surveillance to monitor services [1].

The CQC recognises that the use of CCTV cameras may be the best way to ensure safety or quality of care but highlights the need to consider whether less intrusive steps can be taken by providers to ensure the same aims are achieved. The CQC emphasises the need to consult with the people who use the care service, including residents, families and other visitors to Care Homes and also staff when deciding about whether and how to use surveillance. Where a decision has been made to use surveillance, the relevant considerations should be carefully documented as it is a matter that may be subject to scrutiny in the context of a CQC inspection.

Data Protection Act 1998

The Data Protection Act (DPA) applies to images captured by a camera, including CCTV. It is therefore important for those considering whether to place cameras in Care Homes to address the potentially complex data protection issues to ensure compliance with the DPA.

In order to satisfy the requirements of the DPA, a care home operator will need to be clear about the purpose(s) underlying the use of CCTV cameras in the Care Home. The data protection principles require that filming by way of CCTV is lawful and necessary, proportionate and fair to meet an identified and pressing need. This again raises the issue of whether using CCTV can in fact be achieved in another way that might prove less intrusive in the surroundings of a Care Home, for example, would audio equipment achieve the same result? It is important to have regard to the potential breach of Article 8 of the European Convention on Human Rights (as enacted in the Human Rights Act 1998), that seeks to protect the “private life” and privacy of individuals; the use of CCTV is likely to pose a challenge to those rights and will therefore need to be based on a reasoned justification, such as the safety of residents (see below).

Central to whether the use of CCTV is justified will be how it will support the needs and interests of the residents of the home.

Any care home operator is advised to undertake an assessment to determine whether the use of CCTV is justified, taking into account the benefits of filming in the Care Home against the disadvantages. Is the use of cameras proportionate to the specific concerns that may have arisen in the home or could a less privacy intrusive solution achieve the same objectives? The Information Commissioner’s Office has produced a Code of Practice[2] on conducting Privacy Impact Assessments with an explanation of how to undertake a proper assessment. The Assessment should be based on reliable evidence and show whether the CCTV system proposed can be justified as proportionate to the needs identified.

It is unlikely to be lawful to use CCTV to directly observe the intimate care of residents, unless the explicit consent of the resident has first been obtained. In obtaining consent from a resident, the Care Home would need to provide information about the reasons for the use of CCTV and how the information made available from the filming is proposed to be used and accessed.

If cameras are to be used, having taken account of the Privacy Impact Assessment, the home operator will have to make decisions about various matters relevant to the DPA, including who is to have responsibility for the control of the images and how they are to be used. If a policy is not already in place addressing the relevant issues and providing guidance to staff, consideration should be given to producing such a policy.

The home operator will also need to consider where best to place monitors for viewing CCTV, so that only appropriate and authorised people are able to access the recordings. It will be important for security measures to be put in place to prevent unauthorised access, and where cameras are placed in the bedrooms of residents, this will require an additional level of security. Care home operators should also have regard to the possibility that residents, or their representatives, might rely on their right of access under the DPA to seek access to recordings made by the CCTV.

Storage and use of footage

Care home operators will need to have systems in place for the storage of CCTV films. When considering installing cameras they should also consider the following:

  • The care home operator will need to nominate an individual to be the “data controller”, given the DPA implications of using CCTV, if one is not already in place;
  • Consideration should be given to who is to have access to the film taken;
  • The care home operator will need to consider for what period footage should be stored by the home, a minimum period of 30 days would seem to us to be appropriate; and
  • In the event that there is an allegation of abuse made against a member of staff, CCTV is likely to be relevant and may need to be viewed with regard to making a referral to the Safeguarding Board.


Where a resident lacks capacity

Residents of care homes may not have the mental capacity to consent to their being subject to CCTV filming. Given that it is good practice for consent to be obtained from residents, having particular regard to the DPA, care homes should consult with relatives and carers of residents who lack capacity, in order to give informed consideration to whether filming the resident accords with their best interests under the Mental Capacity Act 2005.

Since CCTV will often give rise to the “continuous supervision” of a resident, if the purpose of the CCTV is to prevent the resident from leaving the premises of the home and he lacks the capacity to consent to these arrangements, there is a risk that this may amount to a “Deprivation of Liberty”, such that the care home may need to consider applying for relevant authorisation in respect of any resident affected.

This briefing highlights only some of the legal complexities of introducing CCTV into care homes. Care home operators will need to undertake a careful review of their policies, and introduce new policies and are advised to seek legal input where CCTV is to be used in homes.


FOOTNOTE:
1. Using Surveillance – published in December 2014 and updated in June 2015 www.cqc.org.uk
2. Conducting Privacy Impact Assessments Code of Practice published by the Information Commissioner’s Office February 2014 (www.ico.org.uk)

© RadcliffesLeBrasseur
Alexandra Johnstone
alexandra.johnstone@rlb-law.com
020 7227 6704
September 2015


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.

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