The Care Quality Commission has recently released two guidance notes on the use of surveillance to monitor the delivery of health and social care services. This guidance follows the abuse scandal at Winterbourne View, which was exposed following covert filming by the BBC. Since the exposure, there has been much public debate about the use of surveillance in care homes and the moral, practical and legal implications of doing so.
So how does this guidance affect you?
The first guidance note was for care providers. This makes it clear that the CQC does not require you to use surveillance. However, surveillance may assist in ensuring that good quality care is provided. If you choose to use surveillance you must ensure that it is lawful, fair and proportionate. So if you plan to do this, consider and record why you wish to use surveillance, how it will be used and what it can achieve. For example, it will only be appropriate to use information obtained by CCTV surveillance for serious disciplinary issues, rather than minor contraventions such as timekeeping.
Any decision to implement surveillance systems should be taken in consultation with those who it will affect. Service users should provide their consent to surveillance being in place.
Ideally, surveillance should be overt and those affected should be aware of its existence. Information about the surveillance should be made available to employees in your staff handbook and to service users in the information provided to them about the home.
Covert surveillance should only be used in exceptional circumstances and is only likely to be justifiable to investigate a specific serious matter.
What are the risks of using surveillance?
Information obtained by surveillance may be ‘personal data’ and will be subject to the Data Protection Act 1998. This information should be kept securely and only accessible by authorised staff members when it is appropriate to do so. Training should be provided to these staff members so that they are aware of their responsibilities.
Caution should be exercised with regards to the appropriate use of surveillance and its effect on service users’ privacy. If surveillance will record sensitive personal data it will require the explicit consent of the individual. Surveillance in private locations where intimate care may be recorded is unlikely to be considered lawful and appropriate.
What if an employee installs their own monitoring? Employees should not be encouraged to use their own covert monitoring. You may be vicariously liable for the actions of the employee if their surveillance has breached the privacy of a service user, even if you did not know about it.
If an employee has a specific concern about a colleague’s conduct they should be encouraged to raise this with a manager and be assured that they will suffer no detriment for doing so. This requires encouraging an open culture where staff are able to raise any concerns.
Indeed, the recent Francis report into the treatment of whistleblowers in the NHS recommended that a change of culture was needed to encourage whistleblowers in the NHS to come forward and to stamp out the poor treatment that whistleblowers often faced as a result of raising concerns.
If an employee’s covert monitoring has exposed poor practice, then you will need to fully investigate the matter. The manner in which the employee obtained the evidence does not excuse you from responsibility to investigate the matter.
It has never been easier to use surveillance. Whether you welcome this or not, all care homes need to be clear with employees and service users what their policy on surveillance is so that all parties understand whether they may be subject to surveillance and to what extent.