Steven Grant Haughton v Kirklees Metropolitan Council

The Tribunal unanimously confirms the decision of the Respondent.

REASONS

This case has raised a difficult question of great importance in connection with the residential care of elderly people. The question, in its simplest form is whether closed circuit television equipment may properly be installed in a residential home? The submissions of each of the parties have included a variety of contentions and have involved us in anxious consideration of the nature and extent of the residents right to privacy within a home of what (if any) are the potential advantages and possible consequences of installing cameras in Sunnyside and of whether, for reasons of security or safety, that undoubted right to privacy may reasonably be diminished.

History of Sunnyside

Mr Haughton became the proprietor of Sunnyside, an existing home for elderly people, in 1980. He extended it in 1985; the registered number was increased from 14 to 19, and later to 21. Following consultations with the relevant authorities he made further improvements in 1986/1987 and the number was increased to 30. In 1988 an extension was added to the home so as to enable the provision of nursing care and in January 1989 Sunnyside became dually registered; the Dewsbury District Health Authority (hereafter called "Dewsbury") granted registration for ten nursing homes places in addition to the thirty care home places authorised by the Kirklees Metropolitan Council (hereafter called "Kirklees"). As a matter of history, in September 1989, after the commencement of the proceedings leading to this appeal, the proportions were reversed to allow thirty nursing home and ten care home places.

Mr Haughton

In his evidence, the Assistant Director of Social Services of Kirklees Metropolitan Council (Mr Hughes) included the following information about the Appellant and Sunnyside. Mr Haughton is a qualified SRN and RMN who has been endorsed as a fit person by Dewsbury and Kirklees. He played a key role in the development of the Kirklees Registered Rest Homes Association. No complaints have been received from residents, relatives or staff about Mr Haughton concerning Sunnyside nor in connection with another home owed by him and registered for sixteen residents. He has compiled with the requirements of the registration authorities regarding staffing levels, qualifications and experience, and in-service training programmes. He has provided a high standard both internally and externally in terms of fabric, decor and furnishings at Sunnyside; he is regarded as a caring man who provides a quality of care at Sunnyside that has been and still is above average.

Background

In August 1986 an inspecting officer observed certain electrical wiring and discovered from Mr Haughton that it was his intention to install a closed circuit television system (hereafter called "CCTV") in the home. The Respondent's guidelines contained no clause on that subject. The officer at once voiced his concern and advised Mr Haughton to write formally so that the matter could be considered by the registration authority. Mr Haughton was to use his own words, "flabbergasted at this reaction" and "cannot understand it even now". A number of letters on the subject of the CCTV proposal were exchanged. It was clear from the outset that the Appellant had no intention of siting cameras except "along corridors and stairwells" as a secondary aid to staff on duty, especially at night. His staffing levels were, and always have been at least up to the ratios required by the registration authority's guidelines and he had no intention of reducing the numbers employed. His declared aims, broadly speaking, were security increased staff efficiency, and enhancement of the degree of care that he could give to his residents. He has always accepted that places within any home other than staircases and passageways are private and must be safeguarded from the intrusion of cameras. His first letter to Kirklees on the subject, dated 1 September 1986, stated his case. Conversely the inspector, after consultation with the Assistant Director, had written to say: "This Authority would not put such equipment in any of its own homes and will not accept it in a home registered under the Act... I find your willingness to use such a system at odds with the philosophy of care you have expressed during our recent discussion about the changes and alterations you are making at Sunnyside". It was, indeed, almost immediately evident that there had arisen a clash of genuinely held opinions between the Appellant and the registration authority who in every other respect, had always shared a good working relationship.

In March 1987 the matter was put before the Client Care Sub-Committee which resolved that CCTV should be used - "only for security purposes for external areas, with cameras focussed externally and not on residents within the home. The guidelines and criteria issued by Kirklees Social Services should be amended in this respect. Those homes which are at present using cameras which focus on internal areas should be informed that these cameras should be removed as a condition of continued registration". This decision was confirmed by the Social Services Committee and then approved by the Council on 29th April 1987. Thereafter Kirklees sought to impose the terms of the decision as a general condition of every registration and caused the removal of internal cameras actually installed in two other homes.

By an exchange of letters between the parties in May 1987 the Appellant (who had obtained legal advice) obliged Kirklees to impose the condition specifically m respect of Sunnyside. The statutory procedure was then invoked, culminating in an appeal by the Appellant to the Registered Homes Tribunal on 7th February 1989 whose decision, following the High Court's decision in Warwickshire County Council v McSweeney, was that the imposition of such a condition was ultra vires; accordingly the appeal was allowed. On 2nd March 1989 Kirklees took what appeared to be the only course left available under the Act and proposed the cancellation of Mr Haughton's registration. The proposal was adopted by a decision of the Social Services Appeals Panel on 6th July 1989. The decision was taken pursuant to sections 10 and 9(b) of the Act, on the basis that the registration authority was satisfied "that for reasons connected with their... equipment... the premises... intended to be used for the purposes of the home... are not fit to be so used". Mr Haughton again appealed, and that was the issue we had to decide.

Counsel for the Appellant made a late submission that section 9(b) is not applicable to the circumstances in this case, but we do not accept that submission.

Mr Hughes informed us that Dewsbury has not yet formulated a policy on the topic of CCTV in the nursing home for which it has responsibility. Dewsbury played no part in any of these proceedings; therefore although Sunnyside is a dually registered home, there is no appeal before us relating to Mr Haughton's registration under Part II of the Act.

The Sources of the Evidence

When the issue first arose, Mr Haughton canvassed opinions. He wrote to, and received letters from relatives and in the spirit of regulation 9(2) of the Residential Care Homes Regulations 1984 he broached the subject of CCTV with certain of his residents and made a genuine attempt to ascertain so far as reasonably practicable their wishes and feelings. He did not seek to influence them; at the same time he accepts that he "had little idea of the drawbacks" at that time and agrees, with hindsight, that he would not have been able to present to them an entirely balanced basis for choice. Thus they were presented with a narrow issue and their opinion was not formed against a background of the wider considerations; his method of approach therefore tended, we think, to favour the adoption of his viewpoint. Letters were produced to us from the West Yorkshire Fire Service, the West Yorkshire Metropolitan Police, and a number of other persons. None of the written replies we have seen expressed opposition to his CCTV proposal and some were expressedly in favour, with or without certain limitations. We have considered them all. Apparently none of the residents approached was opposed to the scheme; indeed we had before us an affidavit from a resident aged 96 whose first reaction was to welcome the idea because previously, whilst living at home on her own she had fallen and remained on the floor for several hours until found there by relatives. She said: I would be much happier in my own mind it I knew that someone was watching to make sure that I got help it this ever happened to me again". We feel sure that the availability of staff and the proximity of other residents afford a sufficient and more effective safeguard than CCTV and rule out all likelihood of such a similar aftermath happening in Sunnyside. Mr Haughton himself gave evidence, and his proposal has the written support of the Kirklees Registered Residential Homes Association, and of his two witnesses (Mr Battey and Mr Martin) whom he called to give evidence at the hearing.

The views of Kirklees were stated in writing and orally by Mr Hughes who informed us that, for the purposes of establishing its policy stance, a wide cross-section of opinion had been obtained from bodies such as the Centre for Policy on Ageing (CPA), the Association of Metropolitan Authorities, the Yorkshire Regional Health Authority, the West Yorkshire Group of Registration Officers, the Social Services Inspectorate of the Department of Health, the Kirklees Registered Rest Homes Association, Dewsbury, and "elderly people on an informal basis whose views were divided". We also received oral evidence from Mrs Quinn of the CPA who supported the Respondent's objections.

Conclusions

The Respondent contended that "privacy starts at the front door", whereas the Appellant considers that there are certain areas of the home (such as hallways and corridors) which are pubic, and cannot be considered as being 'private' since - in addition to residents and staff generally - they are open to tradesmen, maintenance personnel, relatives and visitors coming and going at will. We endorse the stance of the Respondent although, without being semantic, we prefer the view that the right to privacy starts at the front door, and that there are almost bound to be certain areas inside a home which cannot be exactly defined as `private' or `public' because the privacy of any one of those areas depends upon the use to which it is being put for the time being. In homes which have sufficiently large passageways or alcoves it is excellent practice where space permits to install easy chairs and perhaps a small table in places which might ordinarily be regarded as public. There residents may seek a certain privacy, to rest quietly alone or to converse, away from the activity or noise of a communal lounge. We were impressed to note that two such places are available in ground floor passageways at Sunnyside. We consider that such places in any home are to be greatly encouraged but, at the same time, they should be regarded and treated as private whenever occupied by a resident.

We think that the principle of paragraph 1.2.8 of Home Life ("Risk and Choice") has been underestimated or overlooked. Concerning the actual siting of the cameras proposed, Camera no 1, as shown by the photograph and the plan, is objectionable on account of its capably of scanning from opposite the entrances to a WC, a bathroom and a bedroom. Its limited field of vision in an area of no particular hazard, and its proximity to the 'nurses station' seem to us to confer no potential benefit of any significance on the residents by day or by night. The main ground floor corridor cannot be regarded as private in the day time since it appears to be a busy thoroughfare. Mr Haughton conceded that camera no 2 in that corridor would be of no utility in the day time; from the evidence, we could find no reason to think that at night it would be likely to serve any useful purpose. Cameras 3 and 6, if sited as shown would be objectionable on account of their evident ability to view the two rest areas on the ground floor; and camera no 6 would appear to focus closely on any resident making use of the stair lift. Consideration that either of these matters might be at all undesirable had apparently not occurred to Mr Haughton until this Tribunal hearing. Were the field of view of these cameras to be limited, by way of alternative as described by him, we doubt that they would ever prove to be of utility. Cameras 4 and 5 scanning outwards from a central location in the internal first floor passageway give an unremarkable view of an area seemingly without hazard. Mr Haughton's concern is that a resident on that floor might get into some difficulty at night or by day at a time when staff and other residents could be out of earshot. We think that one of the general observations of Mrs Quinn has merit in relation to this area. She suggested that (instead of cameras) first consideration should be given to minimising risk by alternative methods. If a fall is feared perhaps an actual reduction of the risk of such an occurrence here could be achieved by the installation of useful aids such as handrails and colour-coded carpeting?

We agree that after the move from a private dwelling to a care home a resident must accept the impossibility of the same degree of privacy as before. Nevertheless, we are convinced that the very existence of CCTV in a residential care home is prima facie objectionable. We were not convinced of this by the argument based on the perception of residents subject to paranoia or those who might be particularly sensitive to their environment, although that might be an important consideration in some other case. But we take the view that whereas an individual can respect a space that is temporarily and for whatever reason private, a camera cannot do so. A camera has no sensitivity - it cannot look away. So far as residents are concerned the eve of a camera, whether in use or not, presents a hard unblinking stare without sympathy or understanding or other expression, and for many is likely to engender an uncomfortable feeling of being watched. Moreover it seems to us repugnant that any personal idiosyncrasies of elderly people should be capable of being observed in what is their home by the gaze of a machine and reproduced on a screen.

We agree with Mr Hughes and Mrs Quinn that cameras have virtually nothing to offer in a well-ordered home even at night. They do not reduce the risk or the occurrence, of accidents. We find it highly improbable that CCTV would be of advantage in the event of a fall, and that any advantage must be limited to the marginal likelihood that an incident might be detected a little earlier than otherwise. Its utility depends on whether a fall happens to occur in an area covered by a camera lens, and whether, at the material time, a member of staff happens to be at the monitoring station and happens to observe what has occurred - it also presupposes that the victim is unable to attract attention, and that the victim's plight has not been detected by the eyes or ears of any other occupant of the home. Similar reasoning is applicable when considering incidents involving security of the premises which, happily, have been very few. We accept that Mr Haughton never has intended the installation of CCTV as an excuse for a reduction in the numbers of vigilance of staff; but equally we remain wholly unconvinced that such an installation would enable him to provide any better standard of service or care than he does already provide. We agree with Mr Hughes that CCTV would afford a source of temptation to night staff to relax in their duties of general vigilance and personal attention - a tendency that would be difficult to detect and to prevent except by the closest managerial scrutiny.

We accept that in any home there are bound to be features that tend, unfortunately to an institutional atmosphere. Mr Haughton cited the requirements of fire doors, fire extinguishers, fire alarms, smoke detectors, uniforms, lifts, call buttons, and other equipment that is common in registered homes. Uniforms for example, to the extent that they are not strictly necessary, can and should be avoided - but many other such items must be regarded as obligatory either under the applicable regulations or under an authority's guidelines. Those items cited do not intrude upon the privacy or dignity of residents, and they have at least a high potential for making a significant contribution to safety. In our opinion CCTV is an unnecessary addition that emphasizes institutional control and except for some very good reason which in this case does not exist the installation of such equipment must for that reason be discouraged.

It seems to us vitally important that a distinction be made between necessary encroachment upon the right to privacy for a positive and substantial reason connected with the welfare of residents, and encroachment consequential upon a controversial measure such as CCTV intended as much for the benefit of staff or management. In this connection we took note of Mr Haughton's concession that each of his reasons for wishing to install CCTV might be described as of marginal value, and we did not agree with his conclusion that taken together those reasons amount to a justification of his aim.

Findings