The most recent guidance is designed to complement guidance for care providers released in December last year. In both documents CQC is keen to stress that it is not providing advice for or against using such surveillance, but recognises that it is already in use regardless of CQC's position and recommends careful consideration. By providing guidance, it hopes to inform those involved of what issues they should consider when deciding whether to use any form of monitoring equipment. The guidance applies to care homes, hospitals and care provided in other locations, such as service users' homes.
Among the issues CQC recommends that both providers and loved ones consider are the privacy of both service users and those providing care as well as other visitors. It suggests that open surveillance is at least considered in place of covert methods, and consent must be obtained from the care user. If the care user does not have capacity to consent, it suggests that in some cases a best interests decision under the Mental Capacity Act 2005 may not be sufficient to justify use, and a Court of Protection decision may be required. The guidance also notes that surveillance may negatively impact care, particularly if it is overt, as care providers may be more concerned about following protocol than providing warm, caring services.
The Data Protection Act 1998 receives particular attention in the guidance for both individuals and providers, as information recorded through surveillance may include personal data. However, CQC have been careful not to give advice on whether such recording would breach an individual's data rights. The guidance recommends that people and organisations using surveillance consider the reasons for its use, how long it will be used for and what information would be retained. It also recommends particular caution where intimate care may be recorded. It is explicit that surveillance may not be used by individuals in public or communal areas, but providers may consider installing their own surveillance in these areas.
Of particular interest is CQC's statement that they "do not know of anyone who has used this equipment being taken to court as a result", although the guidance does acknowledge that individuals captured by surveillance may feel that this affects or infringes their human rights. However, it is questionable whether legal action could be taken against either private individuals or companies for breaches of human rights, as neither are fulfilling functions of a public nature when doing this. It is also questionable whether covert filming by private individuals in such cases would necessarily be a breach of the Data Protection Act. While filming may be have the potential to be a breach of common law confidentiality, the question is by no means straightforward, particularly when it may be difficult in the circumstances of an individual case to prove (i) that an individual who had been filmed suffered identifiable damage, and (ii) that there was not an overriding public interest that meant that any expectation to confidentiality could not stand.
As matters stand, there is a distinct lack of case law in this area. In one sense, this may be because covert filming in these circumstances is a relatively new phenomenon. Additionally, for the reasons set out above, finding a cause of action may be difficult; a care provider bringing legal action against a family after being found to have provided poor care would be likely to receive negative publicity and little judicial favour. It appears that covert filming is here to stay, and we will continue to review whether and the extent to which the law and the guidance in this area develops.