What is covert video surveillance?

Covert video surveillance is the video and audio recording of interactions between a child and his or her carer, usually the mother. It is conducted without the knowledge of the carer under strictly controlled conditions within a hospital based paediatric department. It is normally undertaken in a designated cubicle where two cameras (smaller than an electric light switch) are installed to provide coverage of the area from opposing positions. Two cameras reduce the possibility of a single camera angle being inadvertently obscured and abusive behaviour being undetected or misinterpreted. A typical CVS monitoring of a potentially life threatening situation would involve a child under 2 years of age connected to a multifunction polygraph for clinical monitoring in a cubicle. This helps to maintain a fairly fixed position relative to the camera while giving the child some freedom to roam. The child is monitored from a remote site by a nurse or police officer or both. If a dangerous abusive action by the carer is observed, a separate nurse on the ward will be alerted to intervene. One of the main dilemmas is that the abusive action has to be allowed to continue long enough to obtain conclusive evidence, yet intervention has to occur in sufficient time to prevent harm to the child.

Southall et al reported 39 children (2–44 months old) who underwent CVS, of whom 36 were referred for investigation of an apparent life threatening event.9Abuse was revealed in 33 with attempted suffocation in 30 patients.

What are the issues in covert video surveillance?

In 1996 the specialist advisory committee in paediatrics of the [UK] Northern Region was asked to consider the issues surrounding the use of CVS. A multidisciplinary group including professionals from health, social services, and the law produced a report and implementation plan.10 11 This group reviewed commonly expressed reservations and objections voiced by both professionals and the public.

ETHICAL AND MORAL CONSIDERATIONS

CVS is not in the best interest of the child

It has been suggested that the Children Act 1989 provides sufficient ways to protect children from abuse without the need for CVS,12 and that if the child is going to be taken into care anyway such surveillance is unnecessary. However, it is important to recognise that although there may be enough grounds for legal proceedings, courts may make a supervision order, or no order at all, unless an appreciable level of risk is shown, and the child may be returned to the parents to face the same risk. CVS in such situations can provide valuable evidence for both care and criminal proceedings. The rights of the child must be paramount and CVS can provide the vital evidence that will allow protection.

CVS is a betrayal of trust and breach of partnership between parents and paediatricians

Concern has been expressed that CVS involves deception and it is therefore an infringement of the civil liberty of the parent. But this is no different from the current child protection procedures except that the duration of information gathering and arriving at a decision regarding further action may be prolonged, depending on the nature and seriousness of abuse in cases of induced illness syndrome. It has been criticised on the grounds that, “in a civilised society even child abusers have procedural rights”13 but the report of the Jasmine Beckford inquiry clearly stated that “parental rights cannot be insisted upon by a parent who has abused these rights”.14

CVS is a risk to the child

There are concerns that to obtain conclusive evidence for civil or criminal proceedings a decision to intervene (sending a nurse into the cubicle) may be delayed and the child may suffer unnecessary harm. Legally and ethically the principle of “double effect” applies in this situation—that is, an act definable as good in terms of its object can achieve a good effect only at the risk or expense of causing incidental but unavoidable harm.15 Premature intervention can miss the extent of the abuse and therefore leaves a child and possibly other children at the risk of being returned to the care of an abusing parent and of suffering continued abuse or death in childhood.

CVS contradicts the principle of openness and partnership with parents

The Children Act developed the concept of working in partnership with parents: “The development of working in partnership with parents is usually the most effective route to providing supplementary or substitute care for their children. Measures which antagonise, alienate, undermine or marginalise parents are counter-productive”.16 Clearly, CVS is in direct conflict with these principles. However in the types of abuse where perpetrators are devious, partnership with parents may need to be curtailed.17 The suggestion that overt video surveillance of carer and child is likely to succeed is inappropriate. If the carer knows the child is being videoed, he or she will almost certainly modify their behaviour.

CVS may cause possible harm to the parent

If a parent is a perpetrator and is caught on videotape, the diagnosis is certain and appropriate action can be taken to protect the child and to offer treatment to the parent. However, if the parent is not the perpetrator, then they are exonerated. CVS will help to prevent the separation of the child from an innocent parent. It is noteworthy that in the 14 cases published by Samuels et al,3 the 12 mothers concerned received non-custodial sentences and psychiatric care as did one grandmother, although the father involved received life imprisonment.

CVS may raise serious concerns among professionals

Professionals may be concerned about undertaking a criminal investigation that takes them away from traditional methods of intervention and treatment. The Royal College of Nursing had serious misgivings about nurses undertaking the role asked of them in the use of CVS,18 but it has given advice as to the safeguards necessary. CVS should only be implemented after full discussion with all staff who need to be involved, and they must have the right to opt out. The Staffordshire protocol19 on implementation of CVS was commended by the Department of Health as guidance all authorities should follow if it is to be attempted in any hospital.20

LEGAL CONSIDERATIONS

One of the most important questions to address is whether there are any legal implications of undertaking CVS. It involves a major invasion of privacy and should be conducted within a justifiable legal framework. The Children Act 1989 upholds the principle that the needs of the child are paramount. The addendum to Working together under the Children Act 1989 gives guidance to doctors stating that the welfare of the child must be of first importance and the overriding principle is to secure the best outcome for the child.21 The legal justification is the need to protect the welfare of the child and other children at risk. Health professionals must appreciate evidential issues and the fact that civil and criminal cases might fail due to inadequate evidence. However, it is never justifiable to use CVS simply to seek a criminal conviction. It is not easily dismissed by the court in child care matters, as the protection of the child is paramount. The criticism from courts has often been on the lack of clear guidelines and protocol for its use rather than the use of CVS itself. The usually unequivocal evidence obtained by CVS is admissible and has been accepted.

Two legal reports are noteworthy. In Reginav Khan 1996 House of Lords it is stated that “Under English law in general there is nothing unlawful about a breach of privacy”.22 As an occupier of hospital premises an NHS Trust is lawfully entitled to install surveillance equipment. Secondly, in DH (A Minor) (Child Abuse) 1994 1 Family Law Reports 679, Wall J, clear guidance is given that “If a doctor considers that covert video surveillance is essential for the treatment of his patient, the doctor would be entitled to undertake this process without parental consent provided that he is satisfied that there is no risk that the patient will come to any serious harm”.23In addition, the Home Office guidelines (1994) on the use of equipment in police surveillance24 represent official approval of such covert means by the police in relation to discovery of crime. By analogy, lawful approval can be extended to cover protection of children from serious harm.

There are legal liabilities, particularly in today’s climate of increasing numbers of claims against Trusts or health professionals. This needs careful consideration. Claims may be made by parents or carers for breach of confidentiality and trust. They may also potentially be made on behalf of the child on the basis of damage caused by delay of intervention if the child suffers additional harm by the continuation of CVS. Risk is minimised by the use of proper protocols based on professional advice, appropriate training, and experience. Conversely if a child dies or is injured because no CVS was used, and if this could have been proven to be the cause of the injury to the child, a claim could be pursued. In addition, claims based on stress and trauma of staff could be made against Trusts. Generally, protection against such claims will be afforded by approval of CVS at Trust Board level, by appropriate insurance cover by Trusts, and by operation of CVS under an agreed multiagency protocol.

PROFESSIONAL ISSUES

Professional issues concern all groups but are particularly relevant for nurses because of their direct involvement. The philosophy of paediatric nursing has changed in the past 20 to 25 years and has become more family focused and holistic. Consequently, for some, lack of openness with parents can cause considerable ethical dilemmas. The nursing role is crucial, and the principles must be understood and accepted by all involved in its operation. They must be adequately trained and fully supported. Assisting the police with the investigation of serious crime is an accepted exception to the professional duty of confidentiality. Consideration should be given to the concerns of health professionals that they may be disciplined if their activities are considered to be unprofessional or improper. This should be dealt with by appropriate clinical decision making in accordance with a protocol and by reassurance from the individual’s professional body, and by operating within a proper multiagency protocol. It is important to note that Trusts have a vicarious liability for all employees acting within the course of their employment under agreed protocols.

There should be a clear agreement that unauthorised notification of CVS to parents and to others will be a disciplinary matter. It could also be a criminal issue if notification has been deemed to interfere with the detection of a crime. Care should be exercised in ensuring that those who volunteer to be involved in CVS are suitable and will be trained. As with any difficult ethical issue, it is wise to involve two independent and appropriate consultant paediatricians from the outset. The inappropriate and maverick use of CVS must be avoided by operating within a strict and rigorous multiagency protocol. There should be a unanimous view that all other alternatives have been addressed.

Conclusions

There has been much debate and controversy about the use of CVS in suspected cases of life threatening abuse over the past few years. Video surveillance of the public, overt or covert, has been undertaken by police over a number of years in an attempt to prevent crime. The principle of video surveillance, therefore, has been well established. However, the debate around the use and interpretation of CVS continues.25 We acknowledge and share many concerns expressed by various professionals. They conclude on the basis of the report produced by the Northern Region’s paediatric subcommittee that CVS is both ethical and legal, and it is acceptable only when used with a rigorous multiagency protocol to safeguard all concerned: the child and his or her family as well as the professionals.26

CVS is ethical if it is necessary to protect the interests of a child and if the child is at serious risk of abuse. It is justified if it is done in the best interest of the child to protect them from serious harm and death. It is the duty of health professionals to use all available approved methods to diagnose and to treat. CVS can therefore be regarded as a justifiable assessment tool to establish a firm diagnosis or to help to exclude deliberate harm to the child. If facilities are not available locally, then the child should be referred to another centre. However, it should never be undertaken without involvement of local child protection procedures, which will include medical, nursing, social work, and police staff.27 Most paediatricians, given the nature and seriousness of the abuse, will agree in principle that CVS is an acceptable diagnostic tool in a small number of children presenting with an apparent life threatening event where child abuse is strongly suspected. Failure to use CVS can lead to a greater risk to life and wellbeing of the child or other children. It should be remembered that in some cases the use of CVS may also prevent the separation of children from innocent parents. A recent editorial28 states that CVS needs to be available as a tool that can be used for some forms of factitious illness. It must also be taken in conjunction with a full child and family assessment, upon which interventions can be based. This is vital for preventing further harm.

Unless we can devise an alternative investigative tool, CVS appears to be necessary, safe, legal, and ethical when operated under a strict and rigorous multiagency protocol in cases of life threatening abuse.