The use of surveillance in care homes

In this update, we take a closer look at the guidance and its likely effects and impact.

What is the background to this guidance?
There are approximately 18,000 care homes in the UK. The well-being of care home residents has led to the use of surveillance in care homes becoming a topical issue.

The Care Quality Commission has been consulting with the users of care homes, their relatives, care home providers and their staff to produce guidance on how surveillance, such as CCTV, should be used in care homes (the Guidance).

The primary purpose of surveillance will be to protect the safety of service users and create a secure environment for them to live in. However, the Winterbourne View abuse scandal also shows how important surveillance can be to instigate both criminal and disciplinary proceedings against employees.

It is accepted that the use of surveillance such as CCTV recordings can be used in disciplinary proceedings and may be a helpful tool to discover instances of misconduct. However, an employer should ensure that it still follows a fair process and investigates an employee’s conduct before making any decision about their employment.

The CQC does not require providers to use surveillance in their care homes and gives no indication as to whether it should be used or not. For care providers who do use such systems, the Guidance contains 16 guidelines for them to follow. This note looks at the key points to come out of the Guidance and how it impacts on care providers.

What laws govern the use of surveillance?
Whether a care provider is considering the use of surveillance equipment at its sites or has already installed a surveillance system, it must consider the impact of legislation, most notably the Data Protection Act 1998 (DPA 1998).

Whilst CCTV is not addressed specially in the DPA 1998, the legislation requires, amongst other things, that personal information obtained must be collected for limited purposes, must be kept secure and should be retained for no longer than necessary.

What does the CQC Guidance say?
The following is a summary of the 16 guidelines produced by the CQC:

• Surveillance can be used to enhance security and protect service users from the risk of abuse. It also serves as a useful tool to investigate allegations of abuse by relatives or of misconduct by employees. However, surveillance should only be used to pursue a legitimate aim. The use of surveillance must be necessary, proportionate and fair. Care providers should therefore think about whether surveillance is the best way to achieve the desired goal and if there are any alternatives which are less intrusive (for example, having more staff, encouraging an open culture where concerns can be raised, use of whistleblowing procedures), these should be pursued.
• Care providers need to recognise their legal obligations when collecting information; in particular, the need to obtain consent from the relevant service user. Where a service user lacks mental capacity, consent of family members will only be permitted if there is a health and welfare lasting power of attorney (LPA) in place. Where there is no LPA, permission from the court needs to be obtained.
• A care provider must think about the information that the surveillance system will collect, both intentionally and inadvertently. When deciding whether to use overt or covert surveillance, the Guidance states that the covert surveillance should only be used where there is a pressing purpose to do so. The Guidance is also very clear that covert surveillance should only be used for a limited time to deal with a specific problem.
• Save in exceptional circumstances, staff, service users and visitors should be informed of the use of surveillance. This may simply require a sign telling those using a care home that surveillance is in place.
• Where CCTV is used in communal areas, this may only require the relevant individuals to be informed of its use. However, due to the personal nature of the images which may be recorded in care homes, where the use of surveillance is being considered in private areas, service users, relatives, staff and where relevant, trade unions, may need to be consulted before it is installed. This consultation would need to address why surveillance is needed, how long the information will be stored and who can access it. The requirement to consult is also ongoing so that the impact of surveillance can be reviewed. However, the CQC recognises that consultation will not be appropriate in limited specific circumstances to avoid informing those being investigated. Any concerns raised during consultation should be addressed.
• Access to information obtained should be limited to staff with a legitimate and lawful need to do so. These staff will need training on the use of the information and a record should be kept of when and why the recorded information is accessed.
• Care providers need to consider that surveillance equipment may be installed by service users or their relatives. A service user or relative should not suffer a detriment of care or consideration if they have used surveillance. Instead, when this is discovered, the reasons for this should be considered and investigated. This may lead to a care provider installing their own surveillance system if appropriate.
• The Health and Social Care Act 2008 gives the CQC power to use the information obtained from surveillance where necessary in conducting inspections and regulating care home providers. However, the CQC emphasises that it will not access this information as a matter of course.

Separate guidance is expected to be issued by the CQC later this month for friends and relatives considering placing surveillance equipment in the room of a service user.

What are the likely effects of the Guidance?
The Guidance illustrates the importance for care providers of considering whether surveillance is necessary and proportionate to the issue it is intended to resolve. They must then decide whether covert or overt surveillance is required.

Given the nature of activities in care homes, special attention must be paid to conducting an impact assessment and consulting service users, their relatives and employees on the use of surveillance.

Surveillance may be taken of an individual changing in a private room or receiving help with washing. In these scenarios, surveillance should only be used in exceptional circumstances where it is necessary to deal with very serious concerns. Extra effort should be made to make those under surveillance aware of this and the appropriate restrictions should be placed on the accessing and disclosure of this information.

How can I find out more?
For further information on this topic or any other aspect of employment law, please get in touch.