Summary: Mr D complained about the Council’s decision to remove a camera he had installed in his son’s room in the care home where he lives. We found it was fault not to take a best interest decision about this. But this fault has not caused injustice to Mr D or his son as it is likely the decision would have been for the camera to be removed.

The complaint

1. Mr D complains on behalf of his son, Mr F, about the Council’s decision to remove a camera he had installed in his son’s room in the care home where he lives.
2. Mr D says the lack of a camera means he is unable to ensure his son’s care is provided in accordance with his care plan or counter false care records and leads to false accusations that his son damages his own property.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. When considering complaints, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. I spoke to Mr D about his complaint and considered the information he sent, the Council’s response to my enquiries and:
• Guidance: Using surveillance in your care service, Care Quality Commission
• Mental Capacity Act 2015 Code of Practice
• Human Rights Act 1998 Guidance, Equality and Human Rights Commission
7. Mr D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Use of CCTV cameras in care homes

8. Closed-circuit television (CCTV) cameras may be used in care homes by either care homes or families on a case-by-case basis. The Government has said they should not be regarded as a substitute for training, management and support of care staff, or for ensuring that numbers of staff on duty are sufficient to meet the needs of users of services.
9. The Care Quality Commission (CQC) has issued guidance on use of CCTV cameras in communal areas of care homes. This says it cannot authorise covert surveillance in residential areas of care homes. For overt surveillance care homes should consult with and seek the consent of residents and their families on the use of cameras. Care homes should be aware of requirements, including legal protections, around ensuring the privacy and dignity of those who are being filmed/observed.
10. The CQC guidance says if a relative places a camera in a room, it is likely to 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, remove it and keep it safe for its owner.

Human rights

11. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to.
12. Article 8 of the Act is the right to respect for private and family life, home and correspondence. The Equality and Human Rights Commission guidance says this means people have a right to live their lives privately, without government interference. It also means that personal information about a person (including photographs) should be kept securely and not shared without their permission, except in certain circumstances.
13. Protocol 1, Article 1 of the Act is the right to protection of property. A public authority cannot take away a person’s property or place restrictions on its use. But this is a qualified right. There are some situations in which public authorities can take property or restrict its usage.
14. It is not our role to decide whether a council has breached the Human Rights Act, this can only be done by the courts. But we can decide whether a council has had due regard to an individual’s human rights in their treatment of them.

Mental capacity

15. The law says a person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity.
16. When a person’s capacity is in doubt, the council must assess their ability to make a decision. An assessment of someone’s capacity is specific to the decision to be made at a particular time. If the assessment finds the person does not have capacity to make that decision, a decision maker will make the decision on behalf of the person.
17. Any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. The Mental Capacity Act 2005 and its Code of Practice set out the steps that decision makers must follow to determine what is in a person’s best interests.

What happened

18. Mr F has a medical condition which causes learning difficulties and physical disabilities. Mr F cannot talk and has been assessed as not having capacity to make decisions about his care, though he can indicate consent to some choices. He lives in a residential care home (“the Home”) operated by a care provider.

History of the camera’s installation and use

19. In 2013 there were incidents of Mr F’s belongings, including expensive communications equipment, being damaged and going missing. Following a safeguarding investigation, Mr D installed a camera in Mr F’s bedroom to monitor and protect his son’s belongings. In response to my enquiries the Council said it had no records of a safeguarding protection plan which included the camera.
20. A mental capacity assessment in 2014 noted that the camera was in place and a best interest decision was taken that it should remain. The decision said the Home’s manager agreed for the surveillance to continue provided it did not contravene employment law and was not intruding on the delivery of personal care. In 2015 Mr F’s care and support needs review said the camera was still in place but Mr D did not have it constantly recording. It was only switched on “occasionally and very randomly”. Although it had served its initial purpose, Mr D wished to continue to use it from time to time.
21. In 2019 the deprivation of liberty authorisation review said without a camera there would be continued risk of Mr F’s valuable property being damaged or going missing, which would cause him a great deal of distress. It also noted the camera “has not been installed by following due process” and recommended the Home and Mr D referred to the CQC’s guidance. The deprivation of liberty was authorised on condition that the use of the camera was subject to a best interest decision reviewed every six months. I have not seen any evidence that these reviews took place.

Key events since 2021

22. Mr F’s 2021 care and support plan said he should be checked every two hours during the night. This was because he had started to have continence issues during the night, although he had not been prescribed any incontinence aids and was able to go to the toilet independently. Mr D has had concerns that this night-time care plan was not being followed correctly.
23. Mr D started to review the camera’s footage on a weekly basis to check his son’s care. He says he found many discrepancies in the Home’s records of when staff checked Mr F and examples of poor practice. In Autumn 2021 the Council started to assess Mr F’s capacity to agree to having the camera in his room.
24. In March 2022 a safeguarding alert was raised following an incident that Mr D had seen on the footage. Mr D made a separate complaint to the Ombudsman about this incident and the night-time care (our reference 22001761). We found no fault in the way the safeguarding investigation was carried out.
25. There was some fault in the way the night-time care was being carried out. We recommended providing Mr D with a reporting system each month which contains 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.

Decision to remove the camera

26. In sharing the camera’s footage with the Council as part of the safeguarding investigation, Mr D told the Council that he had changed the camera as he had been unable to correct the time on the old camera. The new camera was connected to the internet, so he no longer had to download the data from a memory stick weekly but could view it ‘live’. The care provider had given Mr D access to the Home’s Wi-Fi, which was available to all residents.
27. The review of Mr F’s care and support needs in 2022 determined he should be checked every 45 minutes during the night. It was agreed that the Home would send Mr D its electronic tag records (recording when staff went into the room) along with its night-time care records.
28. The Council says following this Mr D raised many concerns that the data entry times did not match with the camera footage. The Council says it became clear that Mr D was using the camera to monitor staff activity, rather than to review incidents or property damage.
29. In August 2022 the Council completed its assessment of Mr F’s capacity. It concluded that he could not consistently indicate his decision regarding the camera and therefore a best interest decision was needed. The assessment said the camera should remain in place until the Council obtained legal advice about its use.
30. Legal advice was given in September 2022. This said that the type and use of the camera had changed without the prior knowledge or consent of all parties. It was therefore breaching Mr F’s and the staff’s human rights. In response to my enquiries, the Council also said it may be breaching data protection rules 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.”
31. Following a meeting with Mr D, the Council informed him on 10 October 2022 that the camera would be removed, setting out its reasons. It was disconnected on 17 October. No best interest decision was taken. In response to my enquiries, the Council said this was because the change in camera and use was breaching human rights, it was being used without appropriate consent and it was not part of Mr F’s care and support plan. Mr D complained.
32. The Council responded to Mr D’s complaint on 17 November. It said the camera was impacting continuity of care; its use had not been consented to and it was a breach of human rights.
33. Mr D came to the Ombudsman. He said it was illegal for the Council to remove his property, it was a breach of his and his son’s human rights and he was concerned that poor care would not be identified without the camera, putting Mr F at risk. Since he came to the Ombudsman, the care provider has given notice to Mr F.

My findings

34. As I have said, the Ombudsman cannot determine breaches of human rights. Nor can we interpret the law nor say whether a crime has occurred. My role is to consider if there was any administrative fault in the way the Council decided to remove the camera. If there was no fault in the decision making, we cannot question the decision.
35. The CQC’s guidance is about use of CCTV in communal areas of care homes, but in the absence of specific guidance on use in bedrooms, I consider it is appropriate for councils and care providers to follow this guidance for all cameras. The Guidance says that cameras may be installed on a case-by-case basis with the consent of all parties, following consultation.
36. A best interest decision was taken in 2014 for the camera to be in place. At this stage the Home had consented to this to protect Mr F’s belongings from theft or damage, and also to ensure Mr F was not falsely accused of damaging his equipment.
37. If the camera’s use had been part of a safeguarding protection plan, when the protection plan was completed, a decision should have been made whether the camera continued to be necessary. However, the Council has no evidence of such a plan.
38. Originally, Mr D would download and review the footage each week. The situation changed when a new camera was installed which allowed Mr D to view the footage at any time. Once Mr D was receiving more information about the checks on Mr F, due to his concerns about the night-time care, it became clear he was using the camera to regularly check the care being delivered to Mr F, rather than in relation to Mr F’s property.
39. The Council took legal advice because this was a change in use. The advice raised concerns about consent and breaches of the staff’s and Mr F’s right to privacy.
40. I cannot say whether a person’s right to a private life is affected by being monitored at work, but the Article 8 guidance says photographs should be kept securely and not shared without a person’s permission. So I consider it was appropriate for the Council to consider the human rights implications for the Home’s staff.
41. In relation to Mr F’s right to privacy, the Council determined he had no capacity to consent to the camera. This means a best interest decision was needed. In addition, the 2019 deprivation of liberty was authorised on condition that the use of the camera was subject to a best interest decision.
42. I therefore find it was fault not to take a best interest decision, which could have considered the legal and human rights matters as relevant factors.
43. However, I do not think this fault caused injustice to Mr D or Mr F. This is because the CQC’s guidance says the agreement of all parties is needed for a camera to be installed. Given that the Home had withdrawn its consent and the Council had concerns, on the balance of probabilities I consider it likely that the Home and Council would not have agreed to the camera being in place. So even if there had been a best interest meeting, the outcome would have been the removal of the camera.
44. The Council suggested other ways to monitor Mr F’s care, which in my view were more appropriate as 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.

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Final decision

45. There was fault by the Council but this did not cause injustice. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman