Cameras in hospitals
Author of the article: Mgr. Barbora Dlabolová, ARROWS (office@arws.cz, +420 245 007 740)
The use of cameras in hospitals - a safety issue or an unreasonable interference with patient privacy? The interest in protecting the health of patients and, consequently, the property of the hospital is often pitted against the protection of patients' privacy in unpleasant life situations. Cameras are virtually ubiquitous nowadays and hospitals are often no exception. Hospital cameras often record hospital rooms or even toilets or showers, in addition to corridors or common areas. So what about the legitimacy of using CCTV in hospitals?
Camera systems in general are an interference with the right to privacy under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the "Convention"), as well as with Section 28(3)(a) of Act No. 372/2011 Coll., on Health Services and Conditions of their Provision (Health Services Act) (hereinafter referred to as the "Health Services Act"), and it is necessary to measure whether or not such a measure is actually necessary. This brings the legitimate interests of the hospital into conflict with the patients' right to privacy during their stay in the facility.
In the long term, a distinction is then made between CCTV with and without recording. As far as CCTV systems in common areas of healthcare facilities (e.g. corridors) are concerned, the interest in protecting the health of patients and the security of the facility prevails in these cases. Thus, if the cameras only capture common areas, there is a perfectly legitimate requirement for the healthcare facility to monitor them. Despite this, personal supervision by a member of staff of the facility should be preferred.
However, a problem arises in situations where cameras are placed in patients' rooms or in sanitary facilities. The use of cameras is not specifically regulated at a statutory level and therefore this intervention must be assessed through the lens of the GDPR (specifically Article 6(1)(f) or Article 9(2)(h) GDPR).
The use of cameras within patients' personal spaces may lead to the complete elimination of patients' intimacy and sense of privacy, while substituting personal care for continuous remote monitoring. Only a real and imminent risk to the patient's life or health, or other similar danger that cannot be prevented by other less intrusive means, can justify such an intensive intervention as the monitoring of these spaces.
In the case of sanitary facilities, the use of camera monitoring is all the more stringent. This may only be resorted to in absolutely exceptional justified cases. Moreover, the dignity of patients must be respected and the footage appropriately shielded from this aspect.
If a healthcare facility wishes to use CCTV, it must therefore clearly define sufficiently legitimate surveillance purposes and assess the necessity. This is in the light of specific local conditions, and is not the same for, for example, bedrooms and common areas.
Proportionality (proportionality)
A particular use of cameras will be permissible if it passes the so-called proportionality test, specifically meeting the requirements of appropriateness, necessity and proportionality. This assesses the interference with privacy and the purpose the camera is intended to fulfil.
Ideally, surveillance should thus always be carried out in person, and if the use of CCTV is to be accepted, it is necessary to properly justify what purpose is being fulfilled, whether it is the protection of property or the protection of the health and life of patients.
If there is insufficient justification for the monitoring of patients' personal areas, in the most serious cases the elements of ill-treatment could be met, depending on the length of the scan and the impact on the patient.[1]
How to use CCTV systems in hospitals
As outlined above, there is a big difference in sensing common areas, for example corridors, as opposed to patients' personal areas. The fundamental difference is that the intrusion into patient privacy can reach the point of intensity of mistreatment. In this respect, several points can be mentioned which affect the assessment of the intrusion into patients' privacy.
With regard to common areas, the purpose of the cameras (or their recordings) must be justified, which will typically be the protection of patients' health and, consequently, the protection of hospital property. To this extent, the use of cameras is then legitimate, taking into account the balance of interests.
However, in the case of patients' private areas, the issue of the use of cameras and their recordings is considerably more complex. Here, the healthcare establishment must sufficiently justify that it is in the interests of protecting the health and life of the patient concerned that the patient in question is monitored by CCTV and that personal surveillance is not sufficient. This is all the more the case if the monitoring is continuous and a record is kept.
Continuous monitoring of patients should be quite exceptional, or rather, it should not occur, precisely because such monitoring can amount to maltreatment. Facilities should ensure that it is sufficiently clear whether or not the camera is scanning and therefore that the cameras can be switched off.
The same applies to monitoring of sanitary facilities. At the very least, sufficient screening should be used to respect the dignity of patients, but again, the use of cameras in these areas should be exceptional, rather sporadic.
It is therefore clear that camera surveillance will be appropriate where the life or health of a patient may be at risk, but even so it should not be overused and personal supervision of patients should still be preferred.
With regard to the retention of CCTV footage, this should not exceed a few days in light of the GDPR, and if it does, this again needs to be properly justified. The Data Protection Authority recommends in its methodology that this period should be no more than one week.[2]
In conclusion
It should always be weighed against whether the purpose of using CCTV cannot be achieved by a less intrusive means that does not interfere with the patient's right to privacy. Once the need for cameras has been properly justified, the dignity of the patient must also be taken into account, as well as the long-term nature of the monitoring. At the same time, this interference with privacy must not reach such an intensity as to amount to ill-treatment.
If you have any questions in connection with health law or related issues, please do not hesitate to contact us. We will be happy to learn more about your case and provide you with appropriate legal assistance.
[1] See the judgment of the European Court of Human Rights in Van der Graaf v. the Netherlands, no. 8704/03, 1 June 2012. Although the Court did not find ill-treatment in the use of cameras in this case, it can be inferred from its reasoning that under other conditions there might be ill-treatment.
[2] Available here: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://uoou.gov.cz/media/clanky/dokumenty/metodika-kamerove-systemy-webpdf.pdf