Surveillance and the elephant in the room

The use of surveillance in health and social care settings is a complex issue. Our right to privacy is so fundamental that its value can be difficult to articulate. This analogy helps make the ethical debate real: Imagine asking members of the public to argue against the installation of cameras in their lounge rooms (Chesterman, 2017). Such is the situation many people find themselves in today when they are being cared for in health and social care settings.

 

 

The context for this blog is the exponential roll out of various forms of surveillance with little to no regard given to the law and people’s human rights. In this blog I want to avoid the false dichotomy of whether surveillance is good or bad and whether it should be used or should not be used.

 

There exists a wide range of surveillance types each with its own uses, variables and measures of effectiveness. It seems obvious to me that these come with a multitude of pro’s and con’s. Yet, what remains a constant is the law to which these technologies can and are applied. This is our elephant.

There are rights-based issues where a balance between protection and privacy, potential benefits vs potential harm must be struck. There are also possible intended and unintended consequences of increased uses of technology.

 

Without a doubt surveillance is a restrictive practice. It can also be a blanket restriction. There is a school of thought that suggests that surveillance institutionalises relationship-based care. One administrator in Berridge’s online survey explained, “Installation of a camera recording the most private spaces is the very definition of institutionalization.” (Berridge, 2019, p.3).

Other legal debates include capacity issues (of the people subject to surveillance) and acquiring informed consent. Many settings contend with economic barriers which make addressing the above legal and ethical considerations a challenging to say the least.

These are important and serious considerations and remain the elephant in the room that some seem determined to ignore.

Who and what is this elephant?

The Human Rights Act (HRA) is the main law in the UK which protects our human rights. People in health and social care settings, even if they are detained under the Mental Health Act, Mental Capacity Act or are subject to another type of restriction on liberty, have human rights. They can never be taken away. Although they can sometimes be restricted in very specific circumstances.

Currently some people’s right to privacy and family life, home and correspondence (Article 8) is being undermined without much thought given to legalities of this restriction.

Yes, Article 8 is a non-absolute right that can be restricted in very specific circumstances. However only if the reason for surveillance passes the proportionality test:

1. LAWFUL – There must be a law allowing a restriction on this right. Mental health, mental capacity, or data protection laws could sometimes allow staff working in public bodies to limit the right to privacy by using surveillance.
2. FOR A LEGITIMATE AIM – There must be a good reason why surveillance is needed.

Often surveillance is installed without due consideration given to a legitimate aim. For example, if it is used purely for staff training purposes, to reduce the number of staff needed or to give someone’s family members peace of mind that they are safe. These reasons alone are unlikely to justify restricting someone’s right to privacy.

3. PROPORTIONATE – services must consider and try out the very many different ways they can achieve the legitimate aim (above) before they restrict a person’s rights. If services are planning on using surveillance they must make sure they have checked that this is the least restrictive option.

For further information, you can download the British Institute of Human Rights CCTV Explainer and Easy Read Guide to Cameras in Health & Social Care and Human Rights resources. These are available at: https://www.bihr.org.uk/human-rights-cameras-guide    

How a service might keep within the law by making sure surveillance is and remains the least restrictive option?

Before implementing surveillance, we suggest that services are clear about five things:

1. The specific problem the introduction of surveillance will alleviate
2. The likelihood that surveillance will succeed in alleviating the problem
3. How unintended consequences of using surveillance will be mitigated
4. The risk to a person’s well-being of removing their rights
5. When you will review the use of surveillance to ensure this option remains least restrictive.

Services must also be sure that they protect people against serious physical or mental harm, whether this harm is intentional or not (Article 3). This right is absolute and so any treatment that is inhuman and degrading is not lawful.

The use of surveillance that causes people to feel worthless, humiliated, or frightened is not lawful. Angela, a person with lived experience, told us, “I have CCTV in my bedroom. It’s in everyone’s bedroom. I can’t even get dressed or go to the toilet without someone watching me. I hate it”. It is likely that Angela’s right to be free from inhuman and degrading treatment is at risk.

Services must therefore also be mindful of the individual impact of surveillance and not assume the same threshold for upholding Article 3 can be generalised across a group of people. 

 

Finally, we should all be able to enjoy our human rights in the same way, without discrimination (Article 14). Making assumptions about blanket care and support needs without considering the impact on individuals might breach people’s rights.

Surveillance and good practice considerations

As a restrictive practice, we recommend that surveillance must only be used:

• For a specific purpose
• When benefit vs harm has been explored and where potential intended and unintended effects have been mitigated
• When there has been a comprehensive assessment of the individual and the reasons that surveillance is needed. The need must be regularly reviewed.
• Where the needs of those subject to the restrictive practice and their families/carers have been consulted and issues of consent and capacity have been addressed
• If relevant legal requirements, including possible infringements on human rights have been considered and addressed
• Staff have had human rights training and training relevant to the use surveillance

Regardless of your own personal views on surveillance the law remains the same. It is time this elephant in the room is helped find its pasture.

To download the RRN and BIHR Surveillance: A restrictive practice and human rights issue Explainer, click here.

A one-page easy download poster is available here.

 

Alexis Quinn is the Restraint Reduction Network Manager, autism campaigner, activist and international speaker. She is the author of Unbroken, which tells her story of being detained under the mental health act against her will, and the harmful restrictive practices to which she was subjected. She now writes about her experience and campaigns for systemic change to stop abusive practices, promote neurodiversity and end the stigma surrounding mental health.