HSPOL25 Recording of Staff Policy v2 by Provide Community

Patients & Member of the Public recording staff in Health and Social Care Settings Policy

Version: V2

Ratified by: Finance and Investment Committee

Date ratified: 07/02/2024

Job Title of author: Head of Health, Safety and Compliance

Reviewed by Committee or Expert Group People & Culture Steering Group

Equality Impact Assessed by: Head of Health, Safety and Compliance

1. Introduction

This policy covers both overt and covert recording (both video and audio) of clinical consultations or treatments through the use of portable recording devices or CCTV on premises where Provide employees work or within the patient’s own home.

This policy also covers patients who covertly record their consultations in their own homes using a hidden camera or mobile device and without the knowledge or permission of those being recorded.

Unlike medical professionals, who are expected by the General Medical Council to obtain patients' consent to make visual or audio recordings, patients do not need the professional’s permission to record a clinical consultation or treatment. Patient recordings which are made either covertly or overtly in order to keep a personal record of what the medical professional said

2. Purpose

The purpose of this policy is to ensure that:

• Staff are aware of the legal rights of both staff and patients who wish to record their clinical consultations or treatments through the use of portable recording devices on premises utilised by Provide staff or at home, including both overt and covert recordings, either with or without the knowledge or permission of those being recorded.

• That under no circumstances the personal safety and wellbeing of all parties is compromised

This policy applies to all patients, relatives and visitors who wish to or engage in recording both audio and visual images of Provide staff whether overt or covert in their actions.

This policy contains information on the management and guidance to staff in relation to patients who wish to record their clinical consultation and / or treatment through the use of a portable recording device on Provide premises or at their own home

This policy informs staff about when recording is clearly not being used for legitimate purposes but clearly intended to be used as form of abuse or threats and intimidation to staff or when attempts are made to record other patients, as this would breach their confidentiality.

3. Definitions

Audio visual recordings is the term used for originals or copies of audio recordings, photographs and other visual images of people who use our services, staff or visitors that may be made using any recording device, including mobile phones. Clinical and restricted access areas is the term used to describe any area within our sites in which clinical care is provided to inpatients or outpatients. This includes wards, theatres, departments and clinics. It also includes any areas associated with healthcare or any other

aspect of our business which has a secure door, requires a pass or authorisation from a member of staff to gain entry

Public Areas is the term used to describe any location within our sites that is accessible to the general public and does not have secure entry, including reception areas and catering areas.

Confidentiality is a duty of confidence that arises when one person discloses information to another person where it is reasonable to expect that information to be held in confidence

4. Duties

Group Chief Executive

Is ultimately responsible for and fully endorses all parts of this policy

Head of Health, Safety and Compliance

The Head of Health, Safety and Compliance is responsible for monitoring the effectiveness of this policy. This will be carried out as an ongoing process and the policy will be subject to a two year review or earlier if required.

The Head of Health, Safety and Compliance will be the point of contact to provide further advice as incidents may lead to other sanctions and legal, police or safeguarding involvement.

Clinical Staff

Clinical staff should be aware of and familiarise themselves with the guidance issued by the Medical Ethics Department of the British Medical Association in relation to patients wishing to record consultations and meetings with clinical staff.

Clinical staff must warn any patients wishing to record consultations or meetings of the notes documented in the ‘Recordings’ section of this policy.

All Staff

Staff are responsible for complying with this policy and behaving in an appropriate way in relation to Service User recording staff in health and social care settings.

Staff must warn any patients wishing to record consultations or meetings of the notes documented in the ‘Recordings’ section of this policy.

5. Consultation and Communication

The policy will be made available on the organisation’s MyCompliance web portal.

The approved policy will be notified in the organisations communication briefings sent via e-mail to all staff.

6. Monitoring

This policy will be audited by the Health and Safety team. This audit will look at Datix recorded incidents where staff report non-compliance with this policy.

Reports on incidents and the outcome of audits will be sent to the Quality & Safety Committee as appropriate

7. The Law

Overview

There are no specific legal requirements that govern an individual making a personal recording of their medical consultation or treatment, either overtly or covertly, for their private use.

Recordings made to keep a personal record of what the professional said are deemed to constitute ‘note taking’ and are therefore permitted when undertaken for this purpose. While a service user/patients does not require permission to record their consultation, common courtesy would suggest that permission should be sought by the patient in most cases.

The content of the recording is confidential to the service user/patient, not the clinician, doctor or healthcare staff. The service/user patient can waive their own confidentiality as they wish; this could include disclosing the details of their consultation with third parties or even posting and/or sharing the recording in unadulterated form on the internet through social media sites.

The position may, however, change once a recording is no longer used as a record of the consultation, for example where the recording is disclosed or publicised in a modified way which is not connected to the consultation. This could include an instance where it is designed to cause detriment to or harass another individual captured in the recording. Any such disclosure or publication, depending on the nature and context, may attract a civil action for damages and may also be a criminal offence.

Overview

There are no specific legal requirements that govern an individual making a personal recording of their medical consultation or treatment, either overtly or covertly, for their private use.

Recordings made to keep a personal record of what the professional said are deemed to constitute ‘note taking’ and are therefore permitted when undertaken for this purpose. While a patient does not require permission to record their consultation, common courtesy would suggest that permission should be sought by the patient in most cases.

The content of the recording is confidential to the patient, not the clinician, doctor or healthcare staff. The patient can waive their own confidentiality as they wish; this could include disclosing the details of their consultation with third parties or even posting and/or sharing the recording in unadulterated form on the internet through social media sites.

Article 2 of the UK General Data Protection Regulation (contained within the Data Protection Act 2018) states that it does not apply to processing of data by a natural person in the course of a personal or household activity. Any recording taken by a service user/ patient or member of the public therefore falls outside of the scope of the data protection legislation provided that they only use the recording for their personal use.

As it is the person who is using our service or member of public rather than the organisation taking the recording then we are not subject to the data protection legislation in relation to the recording. Equally we, Provide Group, are not entitled to a copy of the recording taken by the person who uses our services or member of the public provided that it is for personal use only and not shared in a public forum, including being shared with the media or posted on social media channels.

To the extent that a person who uses our services or member of the public uses a recording for anything other than their own personal use then they are likely to become a data controller and will therefore personally become subject to the obligations contained within the UK General Data Protection Regulation in relation to the recording.

Potential legal action

If any part of a covert or overt recording of the patient’s consultation or members of the public, visitor and relatives, is disclosed to a third party without the prior consent of the other recorded parties, then depending on the nature and the context of such disclosure, a criminal offence may be committed, civil legal action may be taken, or a breach of the Data Protection Act may occur.

Criminal offences

Criminal offences could arise from unauthorised disclosure of recordings, depending on how that disclosure or publication is made. However, the most likely offences could include an offence contrary to section 1 of the ‘Protection From Harassment Act 1997’, an offence contrary to section 4, 4A or 5 of the ‘Public Order Act 1986’, an offence contrary to section 1 of the ‘Malicious Communications Act 1988’ or an offence contrary to section 127 of the ‘Communications Act 2003’.

Protection from Harassment Act 1997

It is an offence under the Protection from Harassment Act 1997 to cause distress and upset to an individual if knowing that such action will cause distress and upset. This could apply if any individuals use the act of recording with the know intention to cause distress and upset.

Criminal Justice and immigration Act 2008

If an individual is clearly recording with the intention to cause a nuisance then they may be committing an offence under the ‘Criminal Justice and Immigration Act 2008’ (Section 119). This applies to persons who are not seeking medical advice, treatment or care could commit the offence if they, for example, use a mobile phone in such a way as to cause a nuisance or disturbance to a Provide staff member and where they fulfil the other elements of the offence (subject to certain safeguards set out in the act).

Duty of Confidentiality

The information disclosed to a service/user patient by our staff during the course of a consultation is confidential to the service user/patient. Any recording that the service user/patient makes for personal use is considered to be unlikely to engage the duty of confidentiality.

Our own duty of confidentiality to the service user/patient remains regardless of the actions taken by a service user/patient.

If a person who uses our services or member of the public records information which is confidential to another individual then this may result in a breach of confidence to that other person. We do not, therefore, permit any recordings that might lead to a breach of confidentiality in respect of other people who use our services.

Article 8 of the European Convention on Human Rights

The Human Rights Act 1998 gives effect to Article 8 of the European Convention on Human Rights. Everyone has the right to respect for private and family life, home and correspondence. This right will be engaged whenever an individual has a reasonable expectation of privacy.

Defamation

Actions for libel can be brought in the High Court for any published statements which are alleged to defame a named or identifiable individual (or individuals’; under English law companies are legal persons, and allowed to bring suit for defamation) in a manner which causes them loss in their trade or profession, or causes a reasonable person to think worse of him, her or them. A statement can include an implication; for instance, a photograph or image in a particular context (for example, a photograph with an accompanying headline implying wrongdoing or incompetence) could be held as a personal allegation about the individual featured in the photograph.

This list is not exhaustive and the specific offence charged would depend on the facts.

8. Recordings

Overt service user/patient recordings

Although we cannot place restrictions on a service user/patient wishing to record notes of a consultation or conversation with a health professional, where it is felt necessary by the service user/patient to do so, we should ensure that:

• any recording is done openly and honestly

• the recording process itself does not interfere with the consultation process or the treatment or care being administered

• the service user/patient understands that a note will be made in their health record stating that they have recorded the consultation or care being provided

• the service user/patient is reminded of the private and confidential nature of the recording and that it is their responsibility to keep it safe and secure

• any recording is only made for personal use

• Service user/patients are aware that the misuse of a recording may result in criminal or civil proceedings

• Service user/patients are discouraged from undertaking recordings in the first place, unless it is deemed necessary by highlighting the above responsibilities.

Covert service user/patient recordings

Although we cannot place restrictions on a service user/patient wishing to covertly record a consultation or conversation with a health professional, where organisations

are aware that covert recording is a significant issue they should aim to discourage service user/patients from doing so by ensuring that:

• the organisation promotes the open and honest recording of consultations, where a service user/patient deems it necessary (see the advice above, which applies equally to covert recording)

• Service user/patients are aware that the organisation takes proactive steps to investigate and address any issues regarding the service user/patient’s treatment and care, to avoid them feeling it necessary to record their consultation

• relevant staff should consider providing service users/patients with a written record summary, and or a verbatim record (if practical) of their consultation for their own personal use

• Service users/patients are advised that they are entitled to see their notes, if they so wish, by informally asking the healthcare professional in charge of the consultation, or to request a paper copy of their medical notes formally through a Subject Access Request (SAR) made under Data Protection Legislation

• Service users/patients are given information on how they can complain if they have an issue with their treatment and care, and their attention is drawn to the relevant guidance from the Care Quality Commission and Information Commissioner’s Office.

Recording of images in the hospital setting

The public and patients are not allowed to film or take pictures anywhere within a clinical hospital setting without prior agreement with the manager of the area, this includes all ward and clinic areas. Any agreed filming or pictures taken must be supervised to ensure no peripheral individuals are captured in recordings.

The organisation has a duty to safeguard patients and staff’s privacy and dignity and therefore any such actions involving the filming or picture recording should be stopped and images deleted.

If individuals refuse to stop filming or delete images after being asked to the individual should be told that they will be reported to the Police and criminal sanctions will be sought. They will also be subject to immediate exclusion from premises and further permanent exclusions may be applied. These individuals must be told that if they publish images or share with a third party in any way they will be committing a criminal offence and the organisation will take legal action.

If such unauthorised filming actions become aggravated the Police must be called.

Any such incidents must also be reported in line with the organisations Incident Reporting Processes on Datix.

9. References

• The Medical Ethics Department of the British Medical Association Guidance

• Protection from Harassment Act 1997

• Public Order Act 1986

• Malicious Communications Act 1988

• CQC Guidance – ‘Thinking about using a hidden camera or other equipment to monitor someone’s care’

• Communications Act 2001

• Data Protection Act 2018

• General Data Protection Regulations (GDPR)

Appendix: CCTV in Service user Homes Guidance

This Guidance is written to explain the response of Provide Community and Group Companies to the use of closed-circuit television (CCTV) and similar devices such as webcams inside and/or outside the homes of its service users, which record the actions of its staff while working, including when entering and leaving the home.

Provide Community and Group Companies understands that visual images such as photographs and video recordings are defined as data and are covered in the same way as written records by data protection principles in organisations, where the GDPR and Data Protection Act 2018 applies. However, it also understands that private dwellings are not covered by the Data Protection Act, which means that the guidance produced by the Information Commissioner’s Office on the use of CCTV does not extend to its use in private households.

Provide Community and Group Companies recognises that it is providing a health/social service, which in line with its registration responsibilities, has a duty to make sure on the one hand that its service users are kept safe from harm and on the other that its staff are not subject to undue harassment or pressures that could impair the quality of their care and their welfare.

Provide Community and Group Companies is therefore aware that service users, relatives and representatives might seek to use CCTV and similar devices to record the care being given to service users as a protective measure, but this might also have the effect of increasing staff stress and be counterproductive in terms of achieving the standards of care that are expected of them.

We have therefore devised our own Code of Practice, which it applies in those homes where it knows that CCTV or similar devices have been installed (or are planned to be installed), which could record the actions of its staff while carrying out their caring duties. The code does not apply to houses where CCTV systems have been installed for external security purposes only and which would not record such as times of workers entering or leaving the house. It does apply where such actions are routinely recorded.

Code of Practice

The code of practice is written to reflect the responsibilities of users of surveillance methods in their relationships with other parties who might wittingly or unwittingly be exposed to them as described in the Information Commission Office guidance on the use of CCTV in organisations where data protection principles apply. This information is not legal advice. We always recommend you get legal advice before using surveillance.

Provide Community and Group Companies

1. Acknowledges that any CCTV and similar recording devices belong to the service user/representatives and it has no control over their use. It can, however, negotiate how they are used in relation to the services, which Provide Community/ has agreed to provide. It enters into any negotiations with a view to creating relationships with the service user and their representatives, which are based on mutual trust, openness and transparency.

2. Recognises that video recording can be a useful tool to help protect a service user from harm and the risk of harm, to promote learning and development and to improve the quality of care if used appropriately.

3. Works on the basis that care practices must only be recorded on CCTV and similar devices with the express permission of Provide Community and Group Companies and individual carers.

4. Service users/representatives who seek to make use of CCTV within the service delivery process must make this clear at the beginning of the service or when proposing it at any later stage so that its use and conditions of its use can be written into the service agreement.

5. Representatives of a service user who seeks to install or use CCTV on behalf of the actual service user must have obtained the latter’s permission or if the person lacks mental capacity to give their consent Provide Community and Group Companies will insist that a “best interests” process is carried out.

6. Where any such agreement has been reached, Provide Community and Group Companies will then make the relevant staff aware of its use. It will then obtain their written agreement to their being recorded within the terms and conditions agreed by Provide Community and Group Companies.

7. Provide Community and Group Companies will always seek to establish the purpose of the use of the CCTV (which might not always be directed at our staff, but a means, for example, of checking on the service user her or himself). It will then set out in writing the purpose and any specific objectives, which are relevant to the individual care and support plan.

8. Provide Community and Group Companies will not agree to the routine recording of any intimate personal care that invades the privacy of the service user and affronts their dignity.

9. We could agree to certain aspects of the care provided to be recorded (with consent) for a specific purpose, e.g. for problem-solving or learning, where there are benefits of recording the procedure for both service user and staff.

10. We will not seek to make use of the recording for its own internal monitoring purposes, except by agreement with the service user and staff as in 6 above.

11. We will discuss with the service user/representatives as part of the agreement on the use of the CCTV how long the images of its staff will be retained, what access other people might have to those images and how they will be disposed of. These are all matters that could affect the rights of Provide Community and Group Companies employees.

12. Provide Community and Group Companies will remind the service user/representatives of the data protection rights of Provide Community Staff, under UK data protection laws, including the right of access to any recorded images/audio of them.

13. We will not tolerate the use of covert surveillance of its staff by a service user and/or their representatives, which implies lack of trust and confidence in both individual staff and Provide Community and Group Companies and individual staff data protection rights. If it discovers that covert surveillance methods are being used unilaterally and without adequate reasons, it will discuss ending its services to that user.

14. In exceptional circumstances where, for example, there is prior evidence of an agency employee harming the service user in any way or putting the person at risk of harm or engaging in any other kind of possible misconduct, it might agree with the service user/representatives to staff behaviour being recorded covertly. The evidence obtained could then be used to trigger the agency’s safeguarding procedures.

15. Provide Community and Group Companies accepts that each situation should be treated differently and the agreements reached will be on an individual basis.

Remember

Installing a hidden camera or other recording equipment in a private or care home or other care service is a big decision. It can affect people’s privacy and dignity. And it can have legal consequences as well. It could help set your mind at ease about the care your loved one receives or even help identify poor care or abuse. It could also intrude on other people’s privacy so there are some important things to consider first.

• Raise your concerns first with Provide Community, they will investigate you concerns, you can also raise with whoever is funding the care, e.g. local council. If you tell us you are worried enough to be considering using recording equipment, we would investigate your concerns

• Consider the legal risk. Staff at Provide Community or people visiting your loved one may be uncomfortable being recorded. They may feel it breaches their rights and could take legal action. The Information Commissioner could also investigate and take enforcement action.

• Get permission. You should only use recording equipment with the permission of the person whose care you are concerned about. It’s important they agree to the use of the technology. Just because somebody does not object to it does not mean they agree to it

• Store the recordings securely. You should make sure you keep the recordings secure. Make sure they are not tampered with or shared with anyone who does not have a good reason to see them. For example, if you use a camera that sends images over the internet, choose a secure system and a strong password. Do not share the password with anyone.

EQUALITY IMPACT ASSESSMENT TEMPLATE: Stage 1: ‘Screening’

Name of project/policy/strategy (hereafter referred to as “initiative”):

Service user/patient and Members of the public recording staff in health care and social care settings policy

Provide a brief summary (bullet points) of the aims of the initiative and main activities: Guidance for staff on how to deal with patients and members of the public who record staff whilst working in health care and social care settings.

Project/Policy Manager: Head of Health, Safety and Compliance Date: January 2024

This stage establishes whether a proposed initiative will have an impact from an equality perspective on any particular group of people or community – i.e. on the grounds of race (incl. religion/faith), gender (incl. sexual orientation), age, disability, or whether it is “equality neutral” (i.e. have no effect either positive or negative). In the case of gender, consider whether men and women are affected differently.

Q1. Who will benefit from this initiative? Is there likely to be a positive impact on specific groups/communities (whether or not they are the intended beneficiaries), and if so, how? Or is it clear at this stage that it will be equality “neutral”? i.e. will have no particular effect on any group.

Neutral

Q2. Is there likely to be an adverse impact on one or more minority/under-represented or community groups as a result of this initiative? If so, who may be affected and why? Or is it clear at this stage that it will be equality “neutral”?

Neutral

Q3. Is the impact of the initiative – whether positive or negative - significant enough to warrant a more detailed assessment (Stage 2 – see guidance)? If not, will there be monitoring and review to assess the impact over a period time? Briefly (bullet points) give reasons for your answer and any steps you are taking to address particular issues, including any consultation with staff or external groups/agencies.

Neutral

Guidelines: Things to consider

Equality impact assessments at Provide take account of relevant equality legislation and include age, (i.e. young and old,); race and ethnicity, gender, disability, religion and faith, and sexual orientation.

The initiative may have a positive, negative or neutral impact, i.e. have no particular effect on the group/community.

Where a negative (i.e. adverse) impact is identified, it may be appropriate to make a more detailed EIA (see Stage 2), or, as important, take early action to redress this – e.g. by abandoning or modifying the initiative. NB: If the initiative contravenes equality legislation, it must be abandoned or modified.

Where an initiative has a positive impact on groups/community relations, the EIA should make this explicit, to enable the outcomes to be monitored over its lifespan.

Where there is a positive impact on particular groups does this mean there could be an adverse impact on others, and if so can this be justified? - e.g. are there other existing or planned initiatives which redress this?

It may not be possible to provide detailed answers to some of these questions at the start of the initiative. The EIA may identify a lack of relevant data, and that data-gathering is a specific action required to inform the initiative as it develops, and also to form part of a continuing evaluation and review process.

It is envisaged that it will be relatively rare for full impact assessments to be carried out at Provide. Usually, where there are particular problems identified in the screening stage, it is envisaged that the approach will be amended at this stage, and/or setting up a monitoring/evaluation system to review a policy’s impact over time.

EQUALITY IMPACT ASSESSMENT TEMPLATE: Stage 2:

(To be used where the ‘screening phase has identified a substantial problem/concern)

This stage examines the initiative in more detail in order to obtain further information where required about its potential adverse or positive impact from an equality perspective. It will help inform whether any action needs to be taken and may form part of a continuing assessment framework as the initiative develops.

Q1. What data/information is there on the target beneficiary groups/communities? Are any of these groups under- or over-represented? Do they have access to the same resources? What are your sources of data and are there any gaps?

Non

Q2. Is there a potential for this initiative to have a positive impact, such as tackling discrimination, promoting equality of opportunity and good community relations? If yes, how? Which are the main groups it will have an impact on?

Non

Q3. Will the initiative have an adverse impact on any particular group or community/community relations? If yes, in what way? Will the impact be different for different groups – e.g. men and women?

Non

Q4. Has there been consultation/is consultation planned with stakeholders/ beneficiaries/ staff who will be affected by the initiative? Summarise (bullet points) any important issues arising from the consultation.

Non

Q5. Given your answers to the previous questions, how will your plans be revised to reduce/eliminate negative impact or enhance positive impact? Are there specific factors which need to be taken into account?

Non

Q6. How will the initiative continue to be monitored and evaluated, including its impact on particular groups/ improving community relations? Where appropriate, identify any additional data that will be required.

Non

Guidelines: Things to consider

An initiative may have a positive impact on some sectors of the community but leave others excluded or feeling they are excluded. Consideration should be given to how this can be tackled or minimised.

It is important to ensure that relevant groups/communities are identified who should be consulted. This may require taking positive action to engage with those groups who are traditionally less likely to respond to consultations, and could form a specific part of the initiative.

The consultation process should form a meaningful part of the initiative as it develops, and help inform any future action.

If the EIA shows an adverse impact, is this because it contravenes any equality legislation? If so, the initiative must be modified or abandoned. There may be another way to meet the objective(s) of the initiative.

Further information:

Useful Websites www.equalityhumanrights.com Website for new Equality agency www.employers-forum.co.uk – Employers forum on disability www.efa.org.uk – Employers forum on age