The Care Home my Dad is staying in has posted his photo on Facebook, is this OK?

When promoting services it is easy to forget that there are rules about how you use photographs of individuals.

A photograph of someone is personal data and should only be used with consent.

The terms of business of the Care home may attempt to cover this. However, it does depend on who signs the agreement:

  • If it is not the data subject then their consent will not have been given.
  • If the data subject signs, but does not have capacity then again consent will not have been given.

The Data Protection Act gives a right to the data subject to object to processing that is likely to cause or is causing damage or distress. In addition Facebook’s terms say that nothing should be done to infringe someone’s rights, (Facebook terms of service clause 5.1).

In practice it is worth remembering that:

  • any consent can be withdrawn in writing;
  • a complaint could be registered with the Information Commissioners Office, ICO who can impose monetary penalties of up to £500,000; and
  • a complaint could be made to Facebook, which if upheld could compromise that marketing channel.

In addition the Care Quality Commission (CQC), who inspect all care homes, look to see that the fundamental standards are maintained.

To this end clients must be treated with dignity and respect at all times while they are receiving care and treatment. This includes making sure that they have privacy when they need and want it.

They must also be able to complain about their care and treatment. The care provider must have a system in place so they can handle and respond to complaints. They must investigate them thoroughly and take action if problems are identified.

Failure to meet the fundamental standard may result in various sanctions and can affect the care homes rating which has to be displayed in the places where they provide care and on their website, if they have one.

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