Decision Date: 16 May 2023
What happened
Mr D complained that the Council removed a camera he had installed in the bedroom of his son, Mr F, in the care home where he lived. He said the camera enabled him to ensure his son’s care was provided in accordance with his care plan and allowed him to respond to claims that his son was damaging property.
Mr F lived in a residential care home. He had learning difficulties, was non-verbal, and lived with physical disabilities. He had been assessed as lacking capacity to make decisions about his care.
In 2013 there were incidents when Mr F’s property, including communication equipment, was damaged or went missing. A safeguarding investigation [as it was referred to at the time] took place and following this, Mr D installed a camera in his son’s room in order to monitor and protect his son’s belongings.
The Council had no record of a safeguarding protection plan which included use of a camera, but none to the contrary, either.
A mental capacity assessment undertaken with Mr F, and subsequent best interests decision undertaken in 2014, noted that the camera should remain. [The report does not say who was involved in this decision-making process.] The Home’s manager had agreed with this providing it did not contravene employment law and did not intrude on personal care delivery. In 2015, it was noted by the Council in Mr F’s care plan review that the camera remained in place, but was only switched on ‘’occasionally and very randomly’’. It seems as if the consensus was that it had served its initial purpose, but Mr D thought it was worth keeping in place.
In 2019, a Deprivation of Liberty (DoLS) authorisation review said that there would be a continued risk to Mr F’s property if the camera was removed, but noted that it had not been installed ‘’by following due process’’ and recommended that Mr D and the Home refer to CQC guidance. The DoLS decision was authorised, with the condition that the use of the camera was reviewed every six months – the report suggests that those reviews did not take place.
In 2021, Mr F began to experience continence issues and his care plan was amended to say that he should be checked every two hours during the night.
Mr D had concerns that this care plan was not being followed correctly and began to review the camera’s footage on a weekly basis. He said that he found discrepancies between the Home’s records and the camera footage. He also said that he had seen poor practice.
A separate investigation to the CLAE had found no fault in the safeguarding investigation at the time, but upheld the complaint that there had been problems with the night-time care input. The Ombudsman recommended that the home provide Mr D with a reporting system each month which contained information on the times staff checked on Mr F during the night and regular monitoring of the Homes’ records, including the room log system, to establish improvement.
In March 2022, Mr D raised a safeguarding concern to the Council following an incident he had seen on the camera. Mr D had shared camera footage with the Council at the time of this safeguarding concern and it was noted that a new camera had been installed which was connected to the internet and therefore Mr D could view it ‘live’. Previously, footage had to be downloaded and reviewed. The care provider had been willing to give Mr D access to the Home’s Wi-Fi.
Mr F’s care plan was reviewed in 2022. It was amended to say that Mr F should be checked every 45 minutes during the night. The Home agreed to share its night-time care records with Mr D, along with its electronic tag records which recorded when staff went into the room.
Mr D raised a number of concerns to the Council that the data entries provided to him by the Home did not match the camera footage. The Council were concerned that this evidenced that Mr D was using the camera to monitor staff, rather than to review incidents or property damage. His stance was that the camera prevented Mr F being blamed for damage to his own things.
In August 2022, the Council concluded a capacity assessment with Mr F about the use of a camera in his room [they had started this nearly a year earlier]. This assessment concluded that he could not consistently indicate his decision regarding the camera and therefore a best interest decision was required. It was agreed that the camera would remain in place until the Council had obtained legal advice.
Legal advice was obtained in September 2022, which said that the type and use of the camera had changed subsequent to the agreement of all parties and therefore it breached Mr F’s and the staff’s human rights. The Council also said that data protection rules may have been breached as ‘’the surveillance was not for use in a domestic setting…as it was used on private property where Mr D is not the legal occupier.’’
The Council informed Mr D in October 2022 that it would be removing the camera because the change in camera and its use was breaching human rights, it was being used without consent and was not part of Mr F’s care and support plan. The camera was removed on 17 October.
Mr D complained to the Council. It responded on 17 November saying that the camera was impacting on continuity of care for Mr F, its use had not been consented to and it was a breach of human rights.
Mr D escalated his complaint to the LGSCO saying that it was illegal for the Council to remove his property, that it was a breach of his and his son’s human rights and that he was concerned that without the camera Mr F would be at risk of poor care.
Shortly after Mr D approached the Ombudsman, the care provider served notice to Mr F.
What was found
The LGSCO highlighted that it is not its position to interpret the law, only to consider any administrative fault in the way the Council removed the camera.
The CQC have issued guidance about the use of CCTV/cameras in communal areas of care homes [when installed by care providers].
The guidance is minimal when it comes to use of cameras in residential areas of homes e.g. bedrooms, although it does state that in situations where a relative places a camera in a room it will likely be a criminal offence if the care home deliberately damages it, removes it with the intention of not returning it, or deletes the recordings. It would not be a criminal offence to switch it off, it suggests, to remove it and keep it safe prior to returning it to its owner.
In the absence of specific guidance on use of cameras in bedrooms, the LGSCO found it to be reasonable to apply the guidance for their use in communal areas. This states that cameras may be installed on a case-by-case basis, with the consent of all parties.
In 2014 it was agreed that it was in Mr F’s best interests for a camera to be in place to protect his belongings, and to protect him from claims that he was damaging his equipment. The Home agreed to this arrangement, and at that time Mr D would download and review the footage each week.
Once the Council was made aware that a new camera had been installed, which allowed Mr D to view ‘live’ footage at any time, it sought legal advice. This was because it felt that Mr D was using the camera to check the care delivery, and not in relation to Mr F’s property. This was a change in agreed use and the legal advice highlighted concerns about consent and breaches of the staff’s and Mr F’s right to privacy.
The LGSCO was not drawn into giving a view on whether a person’s Article 8 rights [right to respect for private and family life] would be affected by being recorded at work but considered it appropriate for the Council to consider the human rights implications for staff.
In relation to Mr F’s right to privacy, the Council determined that he did not have the capacity to consent to the camera and therefore a decision needed to be made as to whether its installation was in his best interests.
The LGSCO considered the 2019 DoLS authorisation, which held the condition that the use of the camera was subject to a best interests decision. The Council failed to do this when it removed the camera in October 2022. This was fault.
However, the LGSCO did not consider that this fault caused injustice to Mr D or Mr F because the CQC guidance states that all parties must agree and consent to the installation of a camera. The Home had withdrawn its consent for the camera and the Council had raised concerns about its change in use. The LGSCO found that in the event that a best interests meeting had happened, it would have been unlikely that the Home and Council would have agreed to the camera remaining, and therefore the outcome would have been for the removal of the camera.
The LGSCO was supportive of the Council proposing alternative ways of monitoring Mr F’s care to Mr D, highlighting that ‘’CCTV should not be used as a substitute for management of carers and it should not be necessary to have CCTV in place to ensure a good standard of care.’’
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
The use of cameras in care homes has been a topic of discussion for a number of years now, peaking at the time of the Panorama (and other) documentaries in the early 2010s, which highlighted horrific abuse of some of the most vulnerable people in our society. However, at that time, for the majority of people, purchasing such ‘spy’ cameras would have been prohibitive. Now with the price of technology becoming much more affordable, the availability of cameras is wider, and the conversation is happening again. [A small camera with live view is available for as little as £19.99 with an annual cost of £29.49 for cloud storage of videos].
In a situation where a camera has been installed by a private individual, but on a health or care provider’s premises, as in Mr F’s case, the situation is grey, with neither the CQC, nor the Information Commissioner’s Office, giving clear guidance.
But in so far as the essence of the issue is privacy, which is a civil law concept, and one can lose a right to it by virtue of one’s consent or behaviour, courting publicity, we think that general principles suggest that an incapacitated person can be scrutinised without their consent in their best interests.
The fact that everyone else involved is engaged in a task (care) that raises article 8 human rights, and the employees will be deemed to have accepted terms and conditions thought appropriate by their employer, we tend to the view that IF the care home (the building owner) agrees to what is proposed in a person’s best interests, then no other wrong then occurs.
If the purpose changes or becomes improper through a shift in focus, then we tend to the view the building owner needs to be asked again, but that the LGSCO investigator has overlooked that the care home itself will OWE human rights to all its publicly funded clients. Once that is factored in, we think that the care home would not have simply been able to stick to its position that the withdrawal of its consent was determinative for the whole issue. It would have to have a very good reason to mind its staff being monitored. Fear of being found not to be abiding by a care plan for 45 minute regular checks, could not be a very good reason, we suggest.
In a situation where a person has capacity to agree to a camera in their room consideration must be given to the provider service, and its staff, and whether they consent to the recording. It could be a difficult situation for a resident and/or relative to understand why, if they aren’t doing anything wrong, a carer would not agree to being filmed, and the s73 Care Act explicit human rights status of all care homes that are meeting the needs of councils’ publicly funded clients still makes for the likelihood of continuation, to our minds.
This is a complex issue, and we are likely to see more cases come up until there is a legal challenge and case law to clarify the principles. In the meantime, however, even though we are at a loss to know why the Ombudsman’s decision as to what would have been the likely outcome had a proper consultation been held, we agree with the Ombudsman that it should not be necessary to have cameras in place to ensure a good standard of care!
The full Local Government Ombudsman report on the actions of London Borough of Redbridge Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/residential-care/22-010-576