This article originally appeared in 'Social Care and Neurodisability'.
Introduction
In this article, the subject of covert surveillance and its use in personal injury litigation is discussed and in particular the impact that such tactics by defendant insurers can have on the catastrophically injured claimant are explored. It also seeks to advise those working with the claimant how to react should they suspect covert surveillance is underway.
The increasing use of video surveillance in personal injury litigation
You would think that once an individual has suffered a very serious injury, such as a traumatic brain injury (TBI), that a defendant insurer (where liability is admitted) would wish to ensure that the injured person had what he or she required to assist them as much as possible. That can often be the case but not always. On an increasing basis I am receiving covert video surveillance of a client in an attempt to discredit the injured person.
I have seen defendants in cases, involving serious head injury, use surveillance operators to try to suggest that a client of mine has capacity to deal with their litigation and financial affairs. For example, video surveillance may show my clients going to the bank and cashing a cheque or endeavouring to get money out of a cash point. Such surveillance is then used to suggest that a claimant is able to deal with their financial affairs, is more physically and mentally capable than has been suggested and in some instances that the claimant is pursuing a fraudulent claim.
The use of surveillance evidence in litigation cases has been around for a long time. Defendants will often seek surveillance evidence in the hope that they will do something that is contrary to the claimant’s evidence. It used to be a tactic used in cases involving back injuries and other orthopaedic type injuries. However, it now seems more commonly used in cases involving head injury.
But should defendants or indeed anyone be able to place you or your family under surveillance?
The right to privacy
We are all the subject of CCTV scrutiny on a daily basis. However, if someone is purposefully trying to gather surveillance about a particular individual what rights does that individual have. Unfortunately anyone can be placed under surveillance and there is little to stop it. Under Article 8 of the Human Rights’ Act 1998, there is a right to a private life. This does not mean that the surveillance is in itself unlawful. The Human Rights Act 1998 only applies to public authorities and so in a general road traffic accident case it gives no protection. Basic principles of law do mean that a surveillance operator cannot trespass on your land and they should not, for example, capture footage of your children unless unavoidable. I see footage of people out shopping, having lunch and picking up their children from school. It seems to me that a catastrophically injured victim is not simply a victim of an accident but is then scrutinised in every way whilst pursuing their claim with little thought of the impact on the individual.
In addition, social networking sites are now regularly reviewed by defence legal teams. Users of sites such as Facebook do not often think about who may be looking at them and usually have low-security settings on their page. Such intrusions understandably cause anyone distress, but raise particular concerns in relation to those with a TBI.
The impact of surveillance on those with a traumatic brain injury (TBI)
Some symptoms of frontal lobe brain damage include heightened anxiety and paranoia. If people with a brain injury become aware that they are being watched then this can lead to people shielding in their home, afraid to access their community and constantly worried that someone is watching them. The negative impact is potentially enormous. The rehabilitation process as a consequence can be seriously undermined.
Discussion
In each case, you need to be aware of the potential effects upon your client of informing them that they are under surveillance. Most of my clients do not have an ability to litigate their cases without support from a ‘‘litigation friend”. This will usually be a family member and so my instructions are taken from that family member. This does, however, place the legal team in a difficult position. Do you tell the injured client that they are under surveillance? I usually seek medical advice on this point and usually the response is that it would be a very bad idea indeed to tell my client about it.
As well as the adverse effects upon the person with TBI the use of such video surveillance is in my view, completely useless to assess such things as financial capacity. Suggesting that because a client can go to the bank and cash a cheque that they are then able to deal with their large-scale financial affairs fails to appreciate different levels of capacity. The Mental Capacity Act 2005 provides that a person is assumed to have capacity. There has to be substantial evidence documented before a person is deemed not to have capacity by medical advisors; such decisions are not taken lightly.
The reason that a defendant will endeavour to prove that a claimant has capacity to deal with their own financial affairs is in an effort to demonstrate that they do not need the help of a professional such as a Court of Protection appointed deputy. The role of the deputy is to ensure that a person without capacity has a level of protection. Their financial affairs are administered with the help of a deputy and this is overseen by the Court of Protection to whom the deputy will report each year.
The involvement of a Deputy and the Court of Protection is, of course, an annual expense. If it can be shown that a claimant is in fact able to manage their affairs then the claim value may be reduced. Video surveillance is, however, in my view a clumsy method and tells a defendant little other than to provide a insight into someone’s daily routine. Using a cash point or cashing a cheque does not mean that someone is able to deal with their large-scale financial affairs.
Similarly attempts to suggest that a person is more capable are often attempts to reduce the level of care and support necessary and so reduce the value of a claim.
So what do you do if you think you or a member of your family is under surveillance?
The first thing to remember is that you should not approach the person who you think has you or someone you work with under surveillance. An approach from you will not stop the operator or someone else in their team simply trying harder and being more secretive in the way that they conduct their surveillance. The best thing to do is to actually report the matter to the police by physically going into the police station and telling them that you believe that you have been followed. Claimants are often followed if, for example, they are on their way to a medical appointment so the defendants know for sure that they are going to be leaving their property at an approximate time. It is also worth taking down the registration number of the vehicle and letting both the police and your solicitor know. If social care workers believe that they are being followed or in some way under surveillance whilst visiting or working with a particular client, they should not hesitate to tell their supervisor and a family member. It is important to make sure that such issues are logged and if litigation is in progress that the solicitors for the claimant are aware.
In one recent case, the defence served video surveillance evidence that spanned several years. There was almost 30 days worth of surveillance. The client had suffered a serious head injury and required a great deal of support. The defence used the video evidence to plead fraud as they believed that the video surveillance showed the client doing more than had been suggested. This was a matter of weeks before trial. We approached Jeff Simm of Don’t be Watched, a surveillance operator who spends his time analysing videos served by defendants. He enabled us to raise a number of questions of the defence surveillance team and cast doubt over some of the evidence served. A response was not received in relation to the questions raised over the surveillance as the claim settled shortly afterwards, but it is important to ensure that any such video evidence is analysed carefully.
Conclusion
The use of surveillance operators by defendants in litigation is something that is going to continue for some time yet. There are of course cases of genuine fraud and such cases are often reported widely.
Claimants need to remain vigilant as do their carers and support workers. Often the surveillance evidence is only served upon the claimant’s solicitors shortly before trial in an effort to worry the client and his litigation friend. If you have any suspicions, contact your solicitor and contact the police.
Corresponding author
Jill Greenfield can be contacted at: Jill.Greenfield@fieldfisher.com
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