Putting hidden cameras in care homes would be a 'legal minefield' warns human rights barrister

A barrister specialising in human rights and criminal law, has warned that putting covert surveillance in care homes, would be a “legal minefield” for both care home providers and for individuals wanting to monitor their friend or relative’s care.

There are estimated to be up to 5.9m CCTV cameras in Britain, including 750,000 in sensitive locations such as schools, hospitals and care homes.

The whole issue of covert and overt surveillance in care homes has long been a topic for debate with some families of abuse victims calling for widespread use, claiming it is the only way to catch abuse or neglect.

However it has now come under the spotlight due to the CQC (Care Quality Commission) deciding to publish guidance on overt and covert surveillance in care homes for both care home providers and the general public.

The decision to publish the guidance has been welcomed by Care and Support Minister Norman Lamb, who said: “Cameras have helped to expose terrible cruelty and neglectful care. Decisions about using surveillance are extremely difficult – there is always a balance to be struck between protecting people and respecting their right to privacy –but this information will help families to make the right choice for them.”

However, the move has been greeted with bewilderment by many in the care sector.

Green light for covert filming

Professor Martin Green, chief executive of Care England, which represents private care homes said: “It’s unacceptable to give the green light for people to do covert filming. Where is the choice of the older person in all that? I’m at a loss as to why the regulator is coming out with this as a position.”

Even Gary FitzGerald, chief executive of Action on Elder Abuse, voiced surprise. At a debate on the issue at the Community Care Conference: Safeguarding adults in care homes and hospitals, he said: “We pioneered the idea in 2001 but it was in targeted incidents where there was reasonable evidence that something was wrong. A high profile example of this was Winterbourne View.

“I think covert surveillance is a diversion from the real issue which is how do you establish good quality care in our care homes.

“Cameras are not going to catch the real abusers. We are getting caught up in a debate about cameras when they are a symptom of the problem not the problem.

“There has been no massive public outcry for cameras.”

His concern is that “If we had cameras in every single care home, we would have so much footage and who is going to look at it all. I really think it is a red herring and it is deflecting us from the whole issue of quality of care.”

Legally it is a minefield

Barrister John Cooper, who is also a visiting professor of law at Cardiff University and a Master of the Bench at Middle Temple, also spoke at the conference, and warned the CQC that “the guidance needs to be clear and unequivocal”. He added: “Legally it is a minefield. It is not sufficient in my opinion to throw onto the provider the responsibilities of determining the Health and Social Care Act. There is an absolute minefield ahead of everyone.”

Mr Cooper revealed that he is “not for or against the proposal” and said: “What it should not do is take the place of traditional inspections.

“It should be an option of last resort when all other options have been exhausted. These cameras are being placed in people’s homes and how would you feel if you had a camera in your front room. If they are going to be used, they need to be focussed and targeted. There is a big argument against indiscriminate cameras in rooms.

“I come from a human rights and criminal background. We have to accept that covert surveillance by police and security forces are an essential part of protecting people but they have to go through a lot of hoops to do it.”

His fear is that it could end up with “an emotionally driven family facing massive legal proceedings” because they have installed hidden cameras in a bedroom in a care home.

Adrian Hughes, deputy chief inspector of Adult Social Care, responded to the comments at the conference, saying: “It is about people who use the service having the right to privacy and dignity. Our guidance will be thinking about the privacy of individuals. It is quite a powerful step to put a camera into someone’s room. We are not saying that people should or should not use covert surveillance. But we are saying think about the residents’ privacy.”

However, Hazel, a carer of a son who is under the Mental Health Act in a learning disability unit said she backed the use of cameras claiming it is the only way she can check on her son who is 200 miles away from home.

Winterbourne View

Advocates for CCTV cameras in care homes, point to the high profile abuse cases that have been exposed by BBC Panorama, using hidden cameras in care homes, such as at Winterbourne View.

However Mr FitzGerald of Action on Elder Abuse said: “With Winterbourne View, the whole system failed, adult safeguarding failed, CQC failed. If we had had cameras I think we would have had four years of footage that no one would have looked at.

“Up till now it has been the BBC which has carried out covert surveillance and they have access to an expert legal team. We have opened up a can of worms with this debate. We do have a clear responsibility to get a clear message out to care providers. Cameras are not the solution. We have to force the Government to invest in social care. I have heard some care home workers saying they haven’t been trained and I think when did you have to be trained to treat someone with dignity!”

Last year, the CQC agreed to view all footage that families present to them, with a spokesman saying: “We will look at footage that is offered to us by families. Up to this point it has been patchy but we will agree to look at everything that is sent to us. If a family offers us footage we will watch it.”

He added the caveat that “this is also an issue for people who have dementia where the Mental Capacity Act should apply and nobody should make decisions on behalf of a person unless it is in their best interests and unless they have assessed whether the person has capacity to make the decision for themselves.”

The CQC published its guidance for care home providers on the use of surveillance in care homes on 16 December. This can be found here http://www.cqc.org.uk/sites/default/files/20141215_provider_surveillance_information.pdf

Separate guidance for the general public wanting to install surveillance in a friend or relative’s room in a care home is expected to be published in January 2015.