Healthcare security officers, like others doing security and people generally, are videoed at work more frequently these days than ever, writes trainer Jim O’Dwyer. He continues an article on the law and policies around the subject.
(Photo by Mark Rowe, with hospital’s permission)
Is the filming terrorism related? It is possible that a person taking photographs or filming in an NHS hospital could be doing so as hostile terrorist reconnaissance in preparation for a terrorist attack. The NHS is recognised as being a potential target of terrorists. NHS staff have been warned to be vigilant to the potential for terrorists to visit healthcare sites for hostile reconnaissance purposes – and filming/recording could evidence that offence.
Section 58 of the Terrorism Act 2000 makes it an offence to collect or make a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or to possess a document or record containing information of that kind. The maximum sentence under s58 is ten years’ imprisonment. So, if there were grounds to suspect a person of committing an offence under the Act, the person(s) could be challenged and arrested by Security, detained and handed over to police. Note: Section 3 of the Counter-Terrorism and Border Security Act 2019 updated the section 58 offence to cover material that is either just viewed or else streamed over the internet, rather than downloaded to form a permanent record. Note: Recording devices seized upon arrest should be stored safely as ‘evidence’ and presented to the police as soon as practicable, for forensic examination. Note: The person arrested should never be asked (or allowed) to turn the recording device on or off because of the danger of evidence being lost or damaged. For ‘reasonable grounds for suspicion’ to exist, (that an offence under the Terrorism Act 2000 has been committed), there must be an objective basis for the suspicion that the person is a terrorist.
Reasonable grounds for suspicion cannot be based on generalisations or stereotypical images of certain groups or categories of people as more likely to be involved in terrorist activity. Photography-filming on its own cannot automatically be considered ‘suspicious behaviour’. Neither should the size of the camera/video equipment be considered as a risk indicator. While ‘reasonable grounds for suspicion’ that would justify a citizen’s arrest could arise based solely on a person’s behaviour (e.g. at or near a location which has been identified as a potential target for terrorists), more usually it would be founded on additional information/intelligence.
If terrorism is genuinely suspected, it would, if practicable, usually be best not to directly challenge suspects or alert them that they’ve been rumbled and instead keep the suspects under surveillance and call the police. Note: If a person’s behaviour arouses suspicion of terrorism, the police should be informed immediately using the 999 (or 112) emergency system.
Is the filming taking place indecent? Recording another person doing a private act, without their consent, for the purpose of obtaining sexual gratification, is an offence of voyeurism (S67 Sexual Offences Act 2003) and taking (or permitting) indecent images of children is a separate criminal offence under section 1(1)(a) of the Protection of Children Act 1978. Both are indictable offences. It should be noted that offenders do not have to be present at the scene of the filming, to commit the offences. The recording can be done remotely, by installing a hidden camera activated by movement detection.
Sadly, the NHS is not immune to the risk of this kind of secret (covert) recording. For example, the case of Andrew Hutchinson, an A&E nurse at John Radcliffe Hospital in Oxford, who between 2011 and 2013, used his mobile phone to film himself raping two female patients while they were unconscious under general anaesthetic.
A police investigation found that Hutchinson had also stolen an endoscope camera from the hospital where he worked, which he had then used to take ‘up-skirt’ images of up to 50 women and also, while working as a volunteer paramedic at the Wilderness Music Festival, he had used the stolen camera to film himself assaulting two young women who had passed out and were unconscious in the medical tent. Hutchinson was jailed for 18 years. Note: the Voyeurism (Offences) Act 2019 made ‘up-skirting’ an indictable, criminal offence. Up-skirting is a term to describe the act of taking sexually intrusive photographs up someone’s skirt without their permission.
Then there is the case of Dr Lam Hoe Yeoh who, in 2014, was jailed for eight years, for secretly filming hundreds of patients, colleagues and friends as they used toilets at hospitals across the country. Some of the victims were people he had known and worked with for years. His crimes were discovered after one of his cameras fell out of position at St Anthony’s Hospital, in North Cheam, south London. He had inadvertently filmed himself securing it into position! A police investigation revealed the offending had been going on since at least 2011 and that Dr Lam Hoe Yeoh had used a sophisticated, hidden cameras, a ‘spy pen camera’ and a ‘watch camera’ to commit offences. It also transpired Dr Lam Hoe Yeoh had stored some of the videos on his NHS work computer. At the time, Dr Yeoh was an honorary senior lecturer at St George’s medical school in Tooting. He ran a regular clinic at NHS St Helier Hospital in Carshalton, Surrey and had worked at two other private hospitals, the Cromwell in Chelsea and the Portland in Central London.
If there are reasonable grounds to suspect a person has committed an offence of voyeurism or taking indecent images of children in a hospital premises, the law provides for them to be arrested (citizen’s arrest) and detained pending the arrival of police. Note: The facility to ‘live-stream’ video images means that when a camera is rolling, images are transmitted live. It also leaves no trace on the phone; no evidence of offence. So, in the circumstances described above, it may also be justifiable to seize (take possession of) the recording device to prevent the offender continuing to commit the offence. Note: If seized, the phone should be safely secured as ‘evidence’ and presented to the police as soon as practicable. Security officers should not inspect or request to see any recordings or demand that the images be deleted. There are no circumstances when a camera’s contents should be deleted or destroyed.
Is there a ‘real risk’ that indecent photographs or videos could be taken in a hospital? The independent report on the ‘Themes and lessons learnt from NHS investigations into matters relating to Jimmy Savile’, published in 2015, confirms that the risk of indecent filming taking place in NHS hospitals is indeed a real risk – see page 96.
What action can be taken if there is no applicable power of arrest? In the absence of any applicable power of arrest, it would still be open to an NHS Trust to remove from the premises any person who breaches the ‘no filming’ policy, using reasonable force if necessary, as provided for in the Common Law Trespass and s119-120 Criminal Justice and Immigration Act 2008 (nuisance or disorderly conduct and refusing to leave). Unless, of course, the person needs medical advice, care or treatment, or if removal would endanger their physical or mental health, in which case it would be both immoral and unwise to remove them. A problem here is that the ‘powers of removal’, whether under Common Law Trespass or the CJIA 2008, cannot be applied to everyone. So, not a complete solution, in so far as, it would still leave it open to patients to remain onsite and continue filming. Note: If no criminal offences have been committed, there would be no legal authority to stop the recording taking place or to seize the recording device and certainly no ‘legal right’ to view, copy or delete any recordings. (i.e. including any images, audio, video files), without the owner’s consent.
Another consideration is the army of ‘carers’ who accompany and support some people who are in hospital for treatment, some of whom are recognised to be so vitally important to the patient’s well-being that they could not ‘reasonably’ be removed from the premises simply for breaching a Trust’s ‘no filming’ policy. So, that is another group that could, in theory, carry on recording. Then, there’s the parents of young children, or babies, or people with severe learning difficulties. Would separating these parties ever be justified to prevent further filming taking place? On top of all that, there’s the risk that someone gets hurt in the removal process.
Something else worth factoring in to the decision-making process and dynamic risk assessment is the very real prospects of adverse publicity resulting from a removal and particularly if it is forceful or results in injury to any party. Could taking all these risks ever be justified as proportionate, given the gravity of the ‘harm’ being prevented? Or, would it best to default to the Trust’s ‘unacceptable behaviour’ policy – which will define a process to be followed in the event that a person’s behaviour falls short of expectations.
Part three of three: how should the security officer react, if the target of recording?
