My colleague Lydia Hayes, with whom I while away many a happy hour nattering about care, pointed me towards this article in the Bristol Evening Post about a care home operated by Shaw Healthcare – The Granary – who banned care home residents and their relatives from using secret cameras in their rooms. As the article points out, the ban was imposed ‘despite a case last summer where three members of staff at The Granary were convicted at Bristol Crown Court of ill treatment and neglect after being caught on covert camera abusing an elderly female resident.’
Shelving, for one moment, the question of whether or not CCTV is an appropriate or effective measure for tackling abuse in care services, this story made my ears flap for what it potentially says about the relationship between care providers, care service users and their families.
The first, rather obvious, observation is that this is a care service where trust between the families of care service users, and the care provider, has broken down. Families no longer feel certain that their relatives are safe in the care home – hardly surprising given that last summer three care workers at the Granary were jailed for ill-treatment of a resident with Alzheimer’s (presumably under s44 of the Mental Capacity Act 2005). The jailed care workers were caught on a covert camera, placed in the care home by a worried relative. The families of other residents now want the right to use CCTV to monitor their relatives’ wellbeing, in case they have concerns, and are objecting to the ban.
The rise of the covert camera in care
I don’t think this is an isolated phenomenon, particular to The Granary. Such is the rise of the use of CCTV to monitor care services to prevent and detect abuse that CQC have now published guidance for families and for providers. Regular news stories about abuse caught on covert cameras indicate that this phenomenon may be growing.
I suspect this development – of covert CCTV surveillance of care services by families – is linked to growing use of undercover reporting by the media to report on abuse in care homes, hospitals and home care – perhaps most notoriously in the case of Winterbourne View hospital. This may have engendered two important beliefs in the public. Firstly, that health and social care services are not to be trusted; even if all appears well on the surface, it might not be if you scratch beneath that. Secondly, that the existing structures that are supposed to protect against abuse – managerial structures, regulation by the CQC, professional bodies, criminal sanctions, safeguarding duties of the local authority – are either complicit in the abuse or else powerless (or apathetic) in detecting and preventing it. The media, with their hidden cameras, however, appear to deliver results – public outcry, campaigns, convictions, changes to the law and policy. If the media’s hidden cameras can catch abuse and secure convictions, then why not those hidden by families?
And there is, I think, some truth in the idea that it’s extremely difficult to secure criminal convictions for abuse without something like CCTV footage. Very often these offences are perpetrated against those who may have significant communication impairments, memory problems, problems with understanding. In other words, people who may struggle to give witness testimony, or who may be regarded as ‘incompetent’ to give witness testimony.
I have long been struck by the contrast between the police’s failure to prosecute a single member of staff in the Cornwall scandal of 2006, where there was no video footage, and the prosecutions of care staff at Winterbourne View Hospital from the abuse scandal that was aired on Panorama in 2011. In Cornwall, the police either felt that what had happened was not ‘crime’ – although inspectors clearly felt what had happened was very serious abuse – or that if there were crimes (including possible rape), there was insufficient evidence to bring charges. Reading the Cornwall police report (it’s no longer online, but I can email copies if people want it), it strikes me that if these acts occurred to any person living in their own home outside of a care setting, there would be no question whatsoever that a crime had been committed. And I do wonder whether, without the visceral impact of undercover footage like that obtained at Winterbourne View, police and prosecutors found it easier to consider these acts to be ‘standard operating procedure’ in hospitals and care services rather than assault, battery, and false imprisonment. Turning to Winterbourne View, according to a Freedom of Information Act request I put in to Avon and Somerset Police, the only offences prosecuted were those caught on camera. I don’t know why older offences, or offences not caught on camera weren’t, but here’s my guess: it’s simply much easier to prosecute when you have film footage, than putting victims through the ordeal of giving evidence and potentially being considered unreliable witnesses.
In addition, those abuse scandals where there was video footage have had a much greater impact on the public consciousness than those which have not. I bet most people in the UK will know, in broad terms, what happened at Winterbourne View – but I doubt many will remember the abuse in Cornwall, or Sutton and Merton (or Ely, or Friern, or Longcare…). I don’t think this is just because they were longer ago: those images from Winterbourne are imprinted on our minds, where the increasingly dry and technical regulatory language of failed care standards and safeguarding lapses does not. This footage has both raised the profile of abuse, and also appears to point to a technology which could prevent it.
Turning back to the Granary, families have clearly learned from last summer that CCTV cameras potentially pick up on abuse they may otherwise not have detected, and that this footage can be used to bring the perpetrators to justice. What’s interesting, however, is that the families don’t seem to be arguing for blanket CCTV coverage, but for the right to do so should they have concerns:
“We have not put cameras in my relative’s rooms but we want the opportunity to install them if we felt it was in their best interests.”
Moreover, the ban is not on the use of CCTV cameras, but on covert surveillance – surveillance of the care home, without the care home’s own sanction. Yet, the families argue, the whole point is that they want the right to covertly monitor their relatives’ care:
“If cameras were not in the room at the time the elderly lady was being abused it is possible those three men may never have been caught and they could still be abusing residents to this very day.”
For the families, it is the covert nature of the surveillance that is protective, not mere surveillance. Why is this, I wonder? Perhaps because there is additional power in care staff not knowing whether they are being watched or not, or rather, in knowing that they might be being watched, but not knowing by whom, or where or when. Because, by retaining the right to covertly monitor staff, relatives may feel some security in knowing that staff believe they might be being watched, and modifying their behaviour accordingly, without relatives even having to place the cameras in their room. Like Foucault’s famous observations on the panopticon, the power derives not from the monitoring as such – it doesn’t matter whether or not the central control tower, observing the prisoners, is constantly occupied, just that it could be. The potentially-observed experience their heightened visibility and adjust their behaviour accordingly, not knowing whether or not they are, in fact, visible. This is also a more efficient way of constraining behaviours: what family member would have time to sit down and watch hours and hours of footage of their relative’s care? The power of the covert camera lies not so much in what is seen, but what might be seen.
The camera ban
I was struck by the Granary’s decision to ban covert cameras, as a response to the rise of familial power. It sends out a clear signal to families, and to residents: this is our space, space that we control, and to an extent it also seems to saye: and we control your relatives’ too.
Let’s start with the Granary’s self-declared power to declare a ‘ban’ on covert cameras at all. It would be surprising if a home care provider declared such a ‘ban’ on the use of covert cameras in a person’s own home. So this ban says something about the extent to which the care home is a ‘home’ in the sense of a space that the residents’ exercise control over, to the exclusion of staff. The relatives of the residents responded to this by asserting the right to personal space:
Her room there is what is left of her home and is her only bit of privacy and a space she can continue to command.
She should be allowed to do what she wishes in this personal setting.
This is reinforced by reference to the fact they have purchased this space, this care, by ‘paying more than £800 a week to live at The Granary.’
The ban has exposed the Granary as not a ‘home’ in the sense that most of us would think of our homes. As if to reinforce this, the Granary warned residents ‘that if any cameras are found during inspections of rooms, they will be removed and any footage, retained.’ I’m intrigued by this – what is a ‘room inspection’? Is it a room search? By what right does the care home ‘remove’ the camera – which is the person’s own possession, or that of their family – and ‘retain’ the footage? This evokes, for me, practices in psychiatric hospitals of room searches and the confiscation of property; practices that have an entire chapter in the Mental Health Act 1983 Code of Practice dedicated to regulating them. Practices which in J Council v GU were considered so invasive of a person’s right to privacy they required ‘super safeguards’ over and above the deprivation of liberty safeguards, including a detailed policy about their use, regular reports on the implementation of that policy to the commissioning NHS body, a court authorisation and special case tracking by the CQC.
Who defines the ‘best interests’ of the residents?
I was also struck by justification for the ban by Shaw Healthcare – who operate the Granary:
Our current policy on hidden cameras incorporates advice from bodies like the Care Quality Commission and has been developed in the best interests of the people who use our service, their visitors and those that provide their care.
While it accepts that cameras can play in important role in identifying incidents of abuse by staff or other service users, it also considers the legal issues around filming people without their consent and the ability of those who may not have the mental capacity to give proper permission.
The care home positions the ban in terms of protecting the privacy of residents ‘who may not have the mental capacity to give proper permission’ to being filmed themselves (it is unclear from the article what their position is on covert surveillance where residents do have the capacity to consent to this).
They flip around the question of who is being surveilled – highlighting that cameras do not only capture footage of staff, but also of the resident, and other residents. At this point, I think it’s worth flagging up that in one of very few studies on attitudes towards user of CCTV in care homes, care provider HC One found that whilst support for ‘visible’ cameras (i.e. not covert surveillance) was high amongst relatives (87%) and a majority of staff (63%) fewer than half of care home residents surveyed supported their use (47%). I’ve no idea how representative this sample is, but it is certainly striking that residents’ themselves – the very people cameras are supposed to protect – may not desire this form of protection. May themselves consider it an infringement of their privacy.
It’s not hard to imagine that some people may not want their relatives viewing footage of them in the care home, undergoing intimate personal care, perhaps engaging in activities or relationships they may not want their relatives knowing about. There’s something about the CCTV camera proposals that, for me, evoke an idea of care home residents as passive people, sitting in armchairs, not as active persons who may value their own privacy. When my grandmother died a few years ago, the care home held a reception after the funeral so that the residents could attend. The stories I heard about my grandmother from the other residents and care staff both delighted and astonished me – the life she had led there, which we had not known about. Some of these stories directly contradicted the image of herself she had presented to us (in a good way).
So, to return to the Granary, whilst I have huge sympathy with the relatives (especially in the context of the abuse convictions from last summer), and can see the logic behind the use of CCTV, I can also see why people may have concerns about the use of CCTV in care homes from the perspective of the privacy of the residents themselves.
It’s striking that both the family, and the provider, couch their position in terms of the ‘best interests’ of the care home residents. This isn’t just a power struggle over the right to use covert surveillance, it’s also about the right to define and determine the ‘best interests’ of the residents. The families, believing that CCTV can help to detect abuse by the care home, want the right to use covert surveillance in the ‘best interests’ of their relatives, meanwhile the provider considers the ban to be in the ‘best interests’ of the residents to protect their privacy. The issue isn’t so much what is in the residents’ best interests, but in who gets to define them.
The ‘correct’ legal position?
Being a lawyer, my mind turns to the law to wonder what the ‘correct’ legal position is here, and I have to say, I don’t think it is at all clear.
Human rights considerations
Care homes are ‘public authorities’ in the meaning of s6 Human Rights Act 1998 (s145 HSCA 2008, soon to be replaced by s73 Care Act 2014), meaning that it may not ‘act in a way which is incompatible with a Convention right.’ Families, for their part, are not ‘public authorities’ are not expected (under the Human Rights Act at least) to act compatibly with their relatives’ Convention rights. Having said that public authorities such as care providers, local authorities and CQC may have positive obligations to protect residents from interferences with their Convention rights by private including, including families.
The most obviously relevant Convention right is Article 8 – the right to respect for home, family and private life. However, I think that the Article 1 Protocol 1 (A1P1) rights to ‘peaceful enjoyment of possessions’ are probably engaged by the threat to confiscate and hidden cameras and retain any footage. Both Article 8 and A1P1 are qualified rights; they may only be interfered with if certain grounds are satisfied.
The trouble is, Article 8 rights cut a number of ways. As Shaw Healthcare point out, the privacy rights of residents are at stake here, and it sounds as if Shaw are positioning themselves as having a positive obligation to protect the right to privacy of residents being infringed by relatives performing covert surveillance. Meanwhile, the relatives might counter that their actions are intended to protect residents against abuse perpetrated by the care provider; something that does sound like a ‘legitimate aim’ under the Convention and which could – in certain circumstances – be necessary and proportionate (and hence a justified interference under Article 8). Interestingly, arguably covert surveillance could achieve this aim with less infringement of rights to privacy, if it means that the protective effect could be felt even if the cameras aren’t actually in use – merely the threat of their use.
The interesting thing here is that both the provider and the families could argue that they are protecting residents’ human rights, and that their actions to restrict each others’ activities are justified interferences in order to further this aim. Whilst relatives are under no legal obligation to do so, this does not mean they have no claim to be permitted to do so (or at least, not to be prevented from doing so by the provider). Both relatives and provider position themselves as the guardians of the residents’ human rights against abuses by each other; the CCTV debate positions them as mutually policing, and the boundaries around their rights and obligations to do so are unclear.
Then there’s the issue of the room searches and property confiscation. This clearly engages the right to privacy of the residents, and arguably the right to respect for ‘home’ and even family life. But I don’t think the law is especially clear on the extent to which care home residents enjoy similar rights to privacy in their rooms to those that people living in their own homes might enjoy. Perhaps it is clear and I’m missing something?
What I think is important, in this context, however, is that interferences with Article 8 must be ‘in accordance with the law’, whilst interferences with A1P1 rights to peaceful enjoyment of possessions must be ‘subject to the conditions provided for by law’, and I’m unaware of any clear cut laws or guidance defining when care home staff may search the rooms of residents and confiscate their property. As I said above, this guidance exists under the Mental Health Act, but as Mostyn J observed in J Council the absence of any equivalent provisions in care services or under the Mental Capacity Act 2005 calls into question whether such practices do comply with basic Convention requirements of the rule of law. In other words, such practices appear to be potentially highly arbitrary and subject to no clear legal regulation, and thus may potentially be unlawful even if they are ‘justified’.
CQC’s guidance for families
Shaw argue that their position is based on CQC’s guidance, so let’s consider what that says. CQC’s guidance for families is, to my mind, pretty waffly and unclear on the legal position. It says that:
Installing a hidden camera or other recording equipment is a big step, and a decision for people and families to make. On the one hand, it might set your mind at ease about any concerns you may have. Or it might help you to identify poor care or abuse. However, you should think about how it may intrude on other people’s privacy, including other people who use the service, staff, families and visiting professionals.
Nothing in here suggests they must always seek the consent of the care provider. Nor does it offer guidance about the privacy rights of other residents, staff, families and visiting professionals, beyond that families should ‘think about’ this.
On the question of consent and capacity, the guidance says that families ‘should only use recording equipment with the permission (consent) of the person whose care you are concerned about, and only in their private room.’ Where their relatives lack the capacity to give this consent, families are advised that they should ‘feel sure that you are doing the right thing – in other words, acting in their best interests.’ This guidance, to families, appears to condone the view that families can make decisions about whether the use of covert surveillance is in the best interests of relatives.
The CQC guidance to families goes on to say that ‘Installing equipment secretly could break the contract of service, so it is important to check what the care service’s policy is.’ This is interesting, as typically families themselves will not have a contract with the provider (so they wouldn’t be under contractual obligations). If the resident is self-funding, the contract will typically be with them, either directly or through a deputy or attorney (if they lack capacity). And if they’re funded by the local authority or NHS, then the contract will be with the commissioning body, again not with families. So whilst contracts might specify that secret recording cannot be used, the contract will only rarely be with the families themselves. Whether that means that the care home is within their rights to conduct room searches and confiscate property is unclear to me. CQC’s guidance to families doesn’t say that care providers may not search rooms and confiscate hidden cameras, but it does say that ‘they would be committing an offence if they deliberately destroyed or damaged the equipment or refused to return it to you.’ The guidance is silent on whether they should return the footage.
Interestingly, CQC themselves seem to take a position that if footage of possible abuse is shared with them by relatives, they will not share it with the care provider without the permission ‘your’ permission (presumably, this is directed towards families). So CQC position themselves, now, as the gatekeepers to the privacy of the person, with the care provider now cast as somebody who might potentially infringe their privacy by viewing the footage. They also position the family as the ‘owner’ of the footage, whose permission is required to share it with the provider (no mention of the consent of the resident featured in the footage).
CQC’s guidance for providers
CQC’s guidance for providers on the use of surveillance appears to be directed towards the use of surveillance by providers themselves, rather than about its use by families. However, it is noteworthy that its first ‘key point’ is that ‘Covert and overt surveillance can have legitimate uses’. Yet Shaw Healthcare appear to have decided that covert surveillance by families cannot have legitimate uses.
CQC’s guidance says nothing (that I can find) about the use of covert surveillance by families; it is about the use of surveillance by providers. So I’m pretty sceptical of Shaw healthcare’s claims that they are basing their decision to ban the use of covert CCTV on CQC’s guidance, or at least, I think they may have extrapolated from it.
The CQC’s guidance for provider also references the ICO’s Code of Practice on CCTV. The Code covers obligations under the Data Protection Act 1998 and the Protection of Freedoms Act 2012. I’m fairly sure, but not certain, that these statutes apply to surveillance by providers but not to use of CCTV by families (I suspect it would fall into the category of personal data collected for ‘domestic purposes’, which is exempted from the general data protection principles by s36 DPA, but I wouldn’t bet more than my lunch money on that).
The Mental Capacity Act 2005
Insofar as use of covert surveillance is a potentially unlawful intrusion on the privacy rights of residents, a defence might be available if either the person had consented to it or if it were somehow connected with an act of care (I think it’s reasonable to say that preventing or detecting abuse would fall into this category), the person placing the camera in the room reasonably believed that the person lacked the mental capacity to give or refuse consent, and that this measure was in their best interests (s5 MCA).
As I commented earlier, both the family and the provider claim to be acting in the person’s best interests. The trouble is, the MCA doesn’t offer any guidance on who gets to interpret best interests in situations such as these. This is one of those tricky situations under the MCA where actually, both might have a legitimate basis for making this claim. This ‘informal’ defence provided by the MCA could potentially be invoked by any person (or organisation) performing acts of care or treatment; the whole point of it was to avoid the formal appointment of a single source of authority over a person for acts of care or treatment. If, however, the person had made a Lasting Power of Attorney (LPA) for welfare, or had a welfare deputy (albeit these are very rare), the decision would fall to them (in effect, consenting on behalf of the person), not the care provider – something which Shaw’s ban doesn’t seem to take into account, at least according to the media reports.
The ‘best interests’ defence would require both provider and family to consult with each other about the person’s best interests, as they are both ‘engaged in caring for the person or interested in his welfare’ (s4 MCA). Obviously, consulting with the care provider rather undermines the ‘covert’ element of surveillance, so families might rely upon the fact this duty only applies ‘if it is practicable and appropriate to consult them’, on the basis that it wouldn’t be if the whole point is that the care provider shouldn’t know about it. Yet, the provider might potentially have good reason for wanting to protect the privacy of the resident – perhaps they know that the resident is engaged in some activity or relationship they’d rather their relatives didn’t know about?
I’m never quite sure where I stand on this whole CCTV in care services question – which is why I’ve not blogged about it before. I’m concerned about the way the use of CCTV potentially infringes the privacy and autonomy of care service users. I am also concerned (prompted by discussions with Lydia) that this may potentially also impact upon ‘good’ care, if staff feel inhibited from showing affection and acting in an informal way towards residents. I think the jury’s out, really, on whether the ‘panopticon’ effect will protect against abuse, although I am fairly confident the where cameras do record abuse it’s much easier to secure convictions with footage than without.
I am also troubled about what the rise of CCTV symbolises – not so much the breakdown of trust in care services, but the idea that given these concerns CCTV is the solution we seem to be focussing on to address them. But having said all that, Shaw’s response – an outright ban, with the threat of room searches and confiscation – to me reeks of a provider throwing its weight around, and a cynical reader would wonder whether this wasn’t influenced by the exposure of its own staff as abusers using these tactics.
Reading this article made me think, once again, about the entangled power relations between care providers, users of care services and their families. Families and providers frequently position themselves as policing potential abuses or infringements of rights by the other against users of care services. This can bring them into conflict with each other, and I’m struck by how often these conflicts take the form of providers deploying their material and legal position of power of physically housing and providing care to the person – always with the potential threat of a disruptive withdrawal of care, if families don’t play ball. If relatives don’t play ball, would Shaw evict the residents? It doesn’t say that in the article, but is this a potential threat that providers could use if residents or their families persisted in using covert surveillance?
The law is often unclear and equivocal on how far families and providers can take action to ‘protect’ relatives from the other. This often plays out in competing claims to authority to determine a person’s ‘best interests’. The law was (deliberately) structured not to take a position here on who has the authority to do this. One can almost imagine legislators looking at situations like these and rather than taking a position (as many countries do) on who default decision makers should be, simply prefers to let families and care providers slug it out in court and in the media and threats and other tactics.
I’m not sure what the law should say about the use of CCTV, but what I do think is that it needs to be much clearer. It’s striking that CQC’s guidance for families finishes with a sort of caveat, saying that ‘This is not a straightforward issue’, it cautions families that it is possible that somebody might take legal action against them, although ‘We are not aware of any instances where recording equipment used by family members has been challenged legally’. CQC’s guidance to families finishes with a disclairmer: ‘Please note that this guidance is not legal advice. You might want to get your own legal advice when considering your next steps.’ In other words: we’ve held a consultation, we’ve received conflicting views and the law is very confusing, so although this is ‘guidance’ ultimately we’re not prepared to stand by it and if you want advice on your legal position you should consult a lawyer.
What a mess.