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Officers and recordings – part one of three

Healthcare security officers are videoed at work more frequently these days than ever, writes trainer Jim O’Dwyer. Here’s the first part of his detailed analysis of the topic.

(Photo taken with hospital’s permission by Mark Rowe)

Most NHS Trusts have CCTV cameras covering ‘high risk’ areas of their sites and increasing numbers of NHS Trusts are also investing in Body Worn Video (BWV) for security staff. By acting as an independent, impartial and reliable ‘third-party’ witness to events, this kind of video footage of incidents can help, not only to improve transparency, (show the way things are done), but also to reduce the incidence of malicious complaints against healthcare security officers.

Video is powerful evidence (especially when coupled with audio), that can help to secure a conviction where criminal offences have been committed. By providing clarity of the circumstances and context of the offences, it can also help to gain the most severe penalty for offenders. Note: video recordings of incidents can provide valuable help in developing and improving staff training. Another way officers can be video recorded at work is by patients or visitors. Practically everyone has a mobile phone these days and nearly every mobile phone has a camera capable of recording audio and video. Some Trusts encourage the use of mobile phones by patients and visitors by providing free wifi. It is now quite common for ‘security incidents’ in hospitals to be filmed either by the subject of the security action or by onlookers. It’s also more likely than not for videos to go viral on the internet wherever security have behaved less than impeccably. So, it’s vital that officers know how to respond when called to deal with complaints from staff about someone filming onsite.

Do people have a legal right to video record at a hospital? The Metropolitan Police has confirmed that: “Members of the public and the media do not need a permit to film or photograph in public places and police have no power to stop them filming or photographing incidents or police personnel.” However, hospitals are not strictly ‘public places’. They are ‘places to which the public have access.’ The significant difference is that permission to access and remain on hospital premises is not unconditional, an absolute right. Instead, it is subject to compliance with any terms and conditions imposed by the Trust as owner-occupier; including behaviour standards like ‘no photographs or filming allowed’.

Trust policy
NHS Trusts have a duty to protect the rights of patients to privacy and confidentiality and most, if not all, will have a policy based on NHS Digital’s recommended guidance on the use of mobile devices in hospitals (such as phones, tablets and cameras) produced by the Information Governance Alliance (IGA). The guidance recognises that communication with family and friends is important when someone is in hospital. In line with the principles of patient choice, the guidance says the use of mobile phones in NHS hospitals should be allowed, as long as their use does not affect:
– the safety of patients or other people
– patients’ privacy and dignity
– the operation of medical equipment (dialysis machines; defibrillators; ventilators; monitors; pumps)

Note: The Medicines and Healthcare products Regulatory Agency (MHRA) has said that in certain circumstances the electromagnetic interference from mobile devices can interfere with some medical devices, particularly if used within two metres of such devices. However, there is little evidence of detriment having been caused by mobile devices and the MHRA does not advise Trusts to operate a hospital-wide ban on mobile phones. The IGA guidance recommends hospitals display signs to show where mobile phones can be used. For example:

– the hospital entrance or reception
– communal areas such as cafés and lift lobbies
– day rooms
– non-clinical areas on wards where direct medical care is not given

However, Trust policies will usually incorporate a blanket prohibition on taking photographs or video recording anywhere on the hospital premises. Information to patients that appears on NHS Digital’s web site says: “ …. if your phone has a camera, it’s unlikely you’ll be allowed to take photographs.” Below, is an excerpt from the IGA Guidance document. It clearly confirms: “Video-photographs of patients must not be taken on phones by patients or visitors without nurse in charge agreement.”

What kind of recording would be permissible? Recordings made to keep a ‘personal record’ of what happened during a consultation or treatment constitutes ‘note taking’ and, when undertaken for this legitimate purpose, can be permitted by the nurse in charge, that is where it is deemed absolutely necessary. Note: Guidance produced by NHS Protect in 2016 titled ‘Patients recording NHS staff in health and social care settings’ recommended that patients should be discouraged from undertaking recordings of consultation or treatment and permitted only where it is ‘deemed absolutely necessary’. A nurse in charge at an Trust could authorise a professional film crew to record inside a hospital, subject to appropriate provisions (including supervision) that safeguard against filming-recording anyone who has not consented. The nurse could also, in exceptional circumstances, permit individuals to take photos and make video recordings (such as of a new born baby or an immobile patient) to share with relatives, on condition that staff or other patients are not captured in the image or recording.

Note: The facility to ‘livestream’ video footage on social media (Facebook Messenger, Facebook Live, YouTube, Instagram) using a mobile phone means Trusts need to highlight to patients and visitors the need to avoid accidentally filming others in the process. Staff need to be vigilant, monitor compliance and enforce the ‘no filming’ policy consistently.

Is it legally necessary to get permission from the nurse? NHS Trust policy will usually invite patients and visitors to formally request permission to make any kind of recording. However, there is no legal requirement to get permission from the NHS Trust or the NHS professionals involved prior to recording their consultation or treatment or, any event that they are a party to at the hospital.

Is video recording in a hospital without permission a criminal offence? Whilst it would be against the Trust’s rules (policy), taking photographs or video recording at a hospital premises without permission from hospital staff is not, in itself, a criminal offence. However, if a patient makes a recording that records other individuals other than of family or friends) whether a patient, visitor, volunteer or member of staff, not directly related to their own care, then, unless consent has been gained from the other recorded parties, any subsequent disclosure (eg published on social media) could be unlawful. Note: Section 170 of the Data Protection Act 2018 makes unauthorised disclosure of personal data a criminal offence.

Guidance produced by NHS Protect in 2016 titled ‘Patients recording NHS staff in health and social care settings’ advised: “Criminal offences that could arise from unauthorised disclosure 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.”

What about covert recordings?
As above, there is no law constraining a person from covertly (secretly) recording audio-video of events they are involved in at a hospital. More people have been resorting to secretly filming the circumstances of ‘care’ being delivered to themselves or loved ones, based on concerns that it is not appropriate. The CQC has published guidance to the public on using hidden cameras to monitor care titled “Thinking about using a hidden camera or other equipment to monitor someone’s care” which (at page 6) invites people to: “Please contact us if your recording shows poor care or abuse and you are worried about sharing it with the service. We want you to tell us about poor care and you should share with us what you have gathered using hidden cameras or recording equipment.” And, at page 8, CQC confirm: “We are not aware of any instances where recording equipment used by family members has been challenged legally.”

What action can be taken when people refuse to stop recording? The action options open to security officers in the event that a person refuses to stop recording in a hospital premises after being asked to desist, will largely be defined by the circumstances, the context (who is recording, who or what is being recorded and why) and, in particular, the gravity of the harm likely to be caused if no action is taken.

Is the filming taking place likely to provoke imminent violence? If, the nature of the filming taking place is likely to provoke a breach of the peace, (cause others present to become violent), common law (breach of the peace) would authorise ‘arrest’ of the person doing the filming; and the common law doctrine of necessity could support action taken to stop them continuing to film including, seizing the recording device, justified as action ‘reasonably necessary’ in order to prevent a breach of the peace. Note: In the circumstances above, the threat of violence if the filming were to continue would have to come from members of the public, not NHS staff or security officers. Note: This is the same ‘legal authority’ NHS staff working in mental health settings rely on, to be able to prevent in-patients causing a nuisance or disturbance to the care and treatment of other patients ie, by, where necessary, taking the recording device away from the patient.

Part two of three: what if the recording is terror related?


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