We are finding that our clients are increasingly either commissioning, providing or care co-ordinating packages of care in community settings which use assistive technology, such as CCTV. Objectively, the use of a CCTV system to provide constant observation and monitoring of a service user could be considered to be a very invasive intervention; impinging upon the service user's fundamental rights and freedoms around privacy. On a human level, it is often something that is considered to be quite oppressive and is certainly a topic that is ripe for debate and ethical dilemmas. Indeed, this is often why care provider organisations are very reluctant to deliver packages of care which extensively use CCTV.
However, on a subjective level, it is acknowledged that the use of CCTV for some service users can be:
- less invasive than line of sight monitoring/observation; and/or
- a way of ensuring that they are able to be discharged from more restrictive care regimes – such a hospital placements – enabling them to have had more freedom than they have for many years; and/or
- a successful method of striking the right balance between a "light touch" approach and managing risks, maintaining wellbeing and safety.
On a practical level, therefore, we are experiencing an increase in the amount of requests for advice and support on the relevant legal frameworks necessary to apply to the use of CCTV.
That being said, the use of CCTV in packages of care in the community represents a serious risk issue for commissioners, providers and care co-ordinators. They must satisfy themselves that the relevant legal frameworks are complied with.
It is quite common for organisations to have a general policy on issues such as the use of CCTV. These are often generic and high level; setting out the organisation's general approach and ethos on these topics. Generic policies on the use of CCTV are not sufficient to regularise and/or authorise interferences with a service user's Article 8 and Article 5 rights.
The Relevant Background
The Human Rights Act 1998 brought the European Convention on Human Rights into force in the UK. It means that public authorities have to abide by and apply the ECHR to all of their decision-making and activities. The use of CCTV in care packages will interfere with the service user's rights under Article 8.
Under Article 8, everyone has a right to privacy, autonomy, family life and personal/physical integrity; that is enshrined within Article 8 itself. However, it is not an absolute right. An example of an absolute right is the right to be free from inhumane and degrading treatment and torture (Article 3). Absolute rights are ones that cannot be interfered with at all. A qualified or limited right, is one which can be interfered with in certain circumstances. Article 8 is a qualified right. Another example of a qualified right is Article 5 – the right to freedom of movement.
The ECHR requires that where a qualified right is going to be interfered with, it can only be interfered with in accordance with a procedure prescribed by law and in so far as it is necessary to do so for a prescribed purpose (the most relevant one here being to protect health, welfare and morals). Essentially, that means that the interference has to be authorised or approved and regulated in accordance with an appropriate domestic legal framework.
You may recall the seminal case of Bournewood – this was the case which went all the way to the European Court of Human Rights. It is the case which triggered the UK to develop the Deprivation of Liberty Safeguards. This whole case was based upon the qualified right to freedom of movement in Article 5. The legal representatives on behalf of HL (who was the service user) argued that the UK did not have a procedure prescribed by law that was sufficient to authorise the interferences with an incapacitated person's deprivation of liberty that the hospital was imposing upon HL. In HL, the hospital relied upon the domestic legal framework of the common law doctrine of necessity. HL won the case; the European Court held that the legal framework in the common law doctrine of necessity, as a process, was insufficient to authorise the interference with HL's rights under Article 5. The UK was required to develop an appropriate and sufficient legal framework to regularise these types of interferences.
The law is beginning to evolve in a similar way for Article 8 interferences. For every action or activity which interferes with P's Article 8 rights, you need a specific legal framework to authorise it. What amounts to a legal framework or "law" is an issue that is open to debate. Obviously, it includes processes/procedures set down in an Act of Parliament – e.g. the Mental Health Act 1983 or the Mental Capacity Act 2005 – and any regulations that come from Acts of Parliament – e.g. the Mental Health Hospital Regulations 2008. Other examples of what can amount to law include case law (known as the common law) or the Rules of the European Union.
More recently, case law has confirmed that policies/procedures of a public body (or an organisation commissioned by a public body and monitored/regulated by a public body) can amount to "law" – as long as they're:
- Stemming from a relevant Act of Parliament – here it would be the MCA 2005;
- Are accessible – i.e. P and family members can access copies;
- Are precise, certain and foreseeable – this means that they need to be written clearly and in accessible format; and
- Are proportionate.
There are a couple of legal frameworks which can be used:
- If P can give capable consent – consent is a legal framework justifying interference. This is only possible if P has capacity and consents. Often, in the packages of care that you are involved with, P won't have capacity and/or doesn’t consent.
- Alternatively, some interferences can be authorised by way of a detailed care plan which is deemed to be in P's best interests under the MCA;
- In some cases, a detailed care plan or policy is required which also has the approval of the Court of Protection.
Generally speaking, as a rule of thumb, the more significant the interference, the more likely it is that a best interest decision under the Mental Capacity Act alone will be insufficient.
Application to the Use of CCTV
It is broadly accepted and agreed that the use of widespread CCTV monitoring for P is a significant interference under Article 8. This means that usually, a best interest decision alone is not enough to make it lawful. Usually, the approval of the Court is required. In order for the Court to approve it, the Court needs to have sufficiently detailed written information about the use of the CCTV. The key is that certain written information is provided specifically about the practice for P.
Strictly speaking, it doesn’t matter whether this sufficiently detailed written information is contained within a care plan or a bespoke policy for that particular P; as long as it contains sufficiently detailed information. In our experience, health and social care professionals are often not keen to include the type of information that the Court requires in a care plan – as it includes non-clinical information such as audit and training.
In addition to the legal frameworks which are required to authorise the interferences in Article 8 rights that arise from the use of CCTV – its use can also engage obligations, duties and responsibilities under the following legal frameworks (including but not limited to):
- Data Protection Act 1998;
- Freedom of Information Act 2000;
- Regulation of Investigatory Powers Act 2000;
- Protection of Freedoms Act 2012; and
- Health and Social Care Act 2012.
Further requirements are imposed in a series of statutory and best practice guidance (including but not limited to):
- Information Commissioner's Code of Practice;
- Code of Practice to the Mental Health Act;
- Code of Practice to the Mental Capacity Act;
- Surveillance Camera Code of Practice;
- CQC Surveillance Guidance.
How can we help?
In the near future, we anticipate that most commissioners, providers and care co-ordinators will be faced with a request for the use of CCTV in a package of care in the community. It is an issue that they must grapple with; but one that is technical and complex, underpinned by a plethora of regulatory and legal requirements.
Please contact Hannah Taylor, Partner if you would like to discuss the use of CCTV in care packages further.