Mind the gap

Respecting people's human rights is about far more than avoiding the worst abuses

 

Human rights protection must apply to those who need it most, argues Katie Ghose

Malnutrition, over-sedation, excessive physical restraint and violence. These are a few of the horrors which happen in some – though by no means all – residential care homes in Britain today. They are inflicted on older people but also on people of all ages who may live away from their own home because of a disability. They have fuelled a fear of going into care in later life – two-thirds of middle-aged people in a recent Guardian poll (3 December 2007) said that the prospect of living in a care home ‘frightened’ them.

When a person lives away from their own home and in the care of the state, they become particularly vulnerable. And not only in the most extreme forms I have mentioned but in other ways too. To take just one example: at the British Institute of Human Rights, we often hear of cases of privacy abuse, with people being left naked or in view of others when receiving help with washing and dressing.

So it is surprising that the Human Rights Act – brought in to ensure that people are treated with dignity, respect and fairness – does not apply to many people in dire need of its protection. A legal ‘loophole’ has excluded from the Act's ambit hundreds of thousands of people whose care has been ‘farmed out’ to the private or voluntary sector. This was never the government’s intention.

When Jack Straw, then home secretary, took the Human Rights Act through the House of Commons, he emphasised that it should have broad coverage to reflect the modern reality of ‘outsourcing’ by public authorities. But this intention has been thwarted by the courts in a series of cases involving private and voluntary sector care homes providing care under contract to local authorities. These decisions threw the ball back into the government’s court and intensified the pressure to legislate as a matter of urgency.

It isn’t difficult to see the equitable argument for applying human rights protection to all people in receipt of public services, regardless of who provides them. It is no more than what people were promised when the Act was brought in. But why do we and many other organisations feel so strongly that human rights legislation would make an important practical difference to the quality of life of people in residential care?

First, making all providers of public care services directly accountable for respecting the human rights contained in the Human Rights Act would provide a clear ‘chain of command’. It is hard enough for people who may be frail, unfamiliar with their rights, possibly over-sedated or suffering from dementia; or indeed for vulnerable younger, disabled people, or their friends and families to contemplate challenging poor practice. It is even more difficult when the lines of accountability are unclear or they have to find ways to communicate their concerns with an ‘arms-length’ local authority (which commissions care services and which is still legally responsible for them under the Act).

Second, giving providers direct responsibility could help to shift the culture of care provision away from thinking about needs to focusing on entitlements. This fits with our modern understanding of care services as emphasising empowerment and independence. Respecting people’s human rights is about far more than avoiding the worst abuses. It is about helping couples to maintain their relationship when one goes into care and one stays at home; giving people the widest range of opportunities to maintain social and cultural lives; and, ultimately, enabling individuals to continue to be themselves, their dignity and self-respect intact.

There is an important relationship between directly enforceable legal remedies – ultimately the right to pursue a case in court – and the creation of a wider human rights culture, which would see all care providers embracing human rights as a means of providing the very best and tailored care to everyone who walks through their doors.

I have heard many people on the frontline say that human rights legal obligations are important because they ‘take away the need to have a moral argument’ during decision-making. Legal remedies or sanctions drive broader cultural change, by giving people the confidence to assert their rights and by offering service providers an extra incentive to protect and fulfil them.

There is a lot of support for making real Parliament’s original intentions by extending human rights protection to everyone receiving public care services, whoever provides the care to them ‘on the ground’. Rumbles from some care providers appear to be informed more by fear of the unknown than any evidence of justified concern. There cannot be any real fear of a rash of legal challenges from people in care homes, for whom this will always be a last resort. And if you are in the business of providing decent care, why not embrace human rights as an additional tool to help you achieve this?

Having seen the courts make a mess of this area, the government has rightly emphasised the need to think carefully about finding an effective remedy. But it must not allow the desire to see a watertight solution obscure the need for urgent legislative action.

With the Health and Social Care Bill currently going through Parliament, the government has a ready vehicle with which to achieve change now. Collective action by many organisations has resulted in an amendment being tabled by Labour MP Kelvin Hopkins. This amendment would require all health and social care providers in the UK to act compatibly with the rights and freedoms enshrined in the Human Rights Act.

Importantly this amendment would confine the changes to health and social care, eliminating the need for cross-governmental agreement on other areas where services are increasingly farmed out, such as housing and education. This may not be the technically perfect solution the government has been searching for, but unless it has something better up its sleeve it should give it serious consideration. If necessary, it can improve upon it at the next stage of the bill by putting forward a government amendment which wins parliamentary support.

Extending the protection of our human rights law to all people in residential care will not immediately eliminate the worst abuses or stimulate an overnight change in culture. But it will be a major step forward, not only for people living in care homes today but for all of us looking forward to future care with trepidation and fear.

Katie Ghose is director of the British Institute of Human Rights

14 Comments

Who would help an elderly person in care to contest Human Right case if and when required? Who would care for the elderly person who has a complaint made about the care home which was difficult to find in the first instance? In real world Human Rights only exist on paper like most Equality, Race or Employment policies because when an individual complaints he/she not only becomes victim but his/her vulnerability is also at stake. Weakness is abused and taken advantage of the victim when he/she complaints. I write from my experience as a victim of racism within Local Government, how my complaint has been treated in UK and also how the saga has affected me. I also have worked with vulnerable elderly clients. How many bodies are there in UK which deal with Human Rights matters at national level and at international level and how many of these bodies deal with individual cases? I request British Institute of Human Rights first make resources to fight individual cases and then write lengthy papers or make 3 year strategies to improve Human Rights in UK. How many individual cases have British Institution for Human Rights consented and how many papers and books it has under its name?

Chander
16 Jan 2008

This situation arose from what was seen as a discrepancy between the status of residents in local authority care homes and those in the private or voluntary sector. The important thing to remember here though is that the Human Rights Act is not about duties between individuals and or companies or other organisations but the duties between the state and all its citizens. It is the power to make the rules which also govern their own behaviour which is one of the main reasons for the special obligation governments and all public authorities have to not breach the fundamental human rights of those they have power over when exercising that power. The essential difference in the case of care homes run by a local authority themselves is that it is they, and/or central government, who are the ones who decide the rules and regulations which apply to the way such care homes are run. Privately owned and run care homes clearly do not have this same power to make or enforce the rules which regulate them and so can not by definition abuse it. The protection given by the Human Rights Act is the guarantee such rules and regulations themselves do not deprive individual citizens of their fundamental human rights as enshrined in the convention and laid out in the 1998 Act. In this respect at least all citizens cared for in such homes, regardless of who actually owns or runs the care home in question or funds the cost of the care provided, have the same rights under the Act. The policing and control of private and charitable care homes, including ensuring compliance with all the rules and regulations set by central and local government and/or relevant public authorities, necessarily falls to the local authority under the general duties of the local authority to regulate all such care homes. Failing to ensure this regulatory duty protects the citizen’s rights under all the human rights conventions should therefore give rise to the right for any citizen so affected to bring an action against the local authority for any breaches of its duties to them under the 1998 Act resulting from the failure to exercise that duty appropriately. A private care home failing to meet its obligations, either under the general rules and regulations so arrived at and any specific contractual arrangements in place, would in addition also continue to be covered by normal civil and criminal law including, of course, the full requirements of the DDA and all other anti-discrimination legislation just as local authority run care homes also do. Local authority care homes are covered by the very same rules and regulations of course but, as the local authority has played a part in the setting of these regulations, it becomes necessary for the extra protections under the Act to prevent them, national government or other public bodies abusing that special status of effectively being able to make the rules that cover their own behaviour. They are in effect both poachers and gamekeepers at one and the same time. Yes, as things stand right now, in theory at least, the residents of local authority care homes do appear to have the added advantage of directly benefiting from the additional duties of public authorities under the DED, but the answer here is simply to ensure that these extra duties extend to all those in care within their area rather than just those in local authority run homes. The reality is, of course is that this is already the case, as all the duties under the DED already extend to all disabled people within the local authority’s boundaries, including all those in care homes of all varieties be they public, private or charitable in nature. As suggested by the Law Lords, it is prudent none the less to review the existing rules and regulations for care homes to ensure the full rights laid out in the convention on human rights do in fact apply equally to all those in care regardless of who runs the home in question. I would, however disagree with their Lordships that who actually funds or pays for the care need should be taken into account at all in this, as surely the same rights should and must apply to all regardless of who is actually footing the bill. This approach would also seem to be fully in line with the DRC’s approach to the issue detailed in Bert Massey’s press release at the time: That said, as I explained earlier, I feel the duty itself should remain with the local authority, as part of their regulatory and enforcement role, rather than being subcontracted out.

Peter John Farrington
16 Jan 2008

Just to add to my initial comment I would like to add the following explanation for my believing the duties under the Human Rights Act must remain with Government, Local Authorities and the other “Public” bodies. In essence the case decided by the Law Lords which gave rise to this debate was actually never about whether or not residents of private care homes are protected by the Human Rights Act, but instead was asking whether any private company or charity providing a service for clients of a local authority takes on the local authority's duties under the Human Rights Act or other legislation when providing such a service on a purely commercial or voluntary basis. This issue therefore goes far wider than just private care homes because, as I said above, it is at the very heart of the relationship between the State and us as individual citizens. The principle of what is and is not a "Public Authority" also has a direct bearing on the DDA because of the Disability Equality Duty because of the extra duties it places specifically on those organisations that are so defined. At issue then is whether or not central or local government or other public authorities can, let alone should, farm out their duties under acts like the DDA, DED or the Human Rights Act to third parties, or whether such duties should always stay with them even if someone else is actually providing the service. In that regard at least there is actually some merit in the decision as a case could still in theory have been taken against the local authority for not having ensured residents rights have been upheld by the arrangement they had not just helped put in place but also fund. The main question at the end of the day though is to what degree a private company or charity can be seen as carrying out the full duties of "The State" to the extent that they also bear the ability or responsibility for maintaining more general rights such as those detailed in the HRA when they are simply acting as suppliers of goods and services. An example of this in operation is the way it has been assumed the housing associations and management arrangements set up to run the old local authority housing stock have also been given the duty to act as quasi public authorities, at least in terms of the extra duties that had previously lain with the local authority in housing matters. Another example of where this potentially comes into play is the impact of farming out functions of the DWP to private companies and charities as the line between who is and is not a public authority becomes blurred not least when working out who owes whom the rights and responsibilities under the Human Rights Act and other similar legislation like the DDA and DED. My own current battle with my local NHS trust over charging for Blue Badge parking is yet another example. In this case when I asked about things like the duty they had to carry out a disability impact assessment their first reaction was to say, “But we don’t run the car parks a private company does that for us”. Needless to say I am working on the basis it matters not who manages the car park the duty to ensure it is run in a way that does not make life harder for disabled people using hospitals in the area remains with the NHS Trust with the full HRA, DED & DDA duties their status as public authorities gives them. My guess is some form of compromise will eventually be cobbled together to resolve these issues, following the Law Lords previous ruling. Possibly this will be by including reference to the issue in the long anticipated Single Equality Act rather than the Social Care Bill though, as I believe this impacts on far more than just social care. From paragraph 171 of their Lordship’s judgement it would appear they would certainly welcome some urgent clarification on this issue: Lords Judgement Paragraph 171. "Finally, it is right to add this. It may well be thought to be desirable that residents in privately owned care homes should be given Convention rights against the proprietors. That is a subject on which there are no doubt opposing views, and I am in no position to express an opinion. However, if the legislature considers such a course appropriate, then it would be right to spell it out in terms, and, in the process, to make it clear whether the rights should be enjoyed by all residents of such care homes, or only certain classes (e.g. those whose care and accommodation is wholly or partly funded by a local authority)."

Peter John Farrington
17 Jan 2008

The HRA states that it helps couples to maintain relationships when one of the couples go into care and the other is living indipendantly. It also states that it helps individuals to maintain dignity and respect. How can that be when I find myself in an imposible situation with my dependant in laws and them being dependant on the Council to ensure human rights are maintained for them, when in fact the Councils main priority is the cost on their budgets. Both in laws were living happily together and indipendat, my mother in law was diagnosed as having Parkinsons and over a period of time her health deteriated. My father in law cared for her for a long time until he could cope no more. She was assessed as needing 24 hour care and placed in a private residential care home. Their home was broken up as by this time my father in law could not manage the large home on his own and it was his wish to be with other people his own age. He went to sheltered housing.He could not addapt to the change, was fearlessly missing his wife of 50+ years and was very lonely during the day when my Husband and I were at work.He is in hospital at this moment in time recieving treatment for a cyst. However he is becomming increacingly confused and I requested a meeting with the medical social worker regarding my father in laws and our wishes that he not return to the sheltered housing but go into the same care home as my mother in law. Both in laws want to see their end of their days together which in my oppinion won't be that long. I was told by the social worker and a nurse that he requires assessment due to cost of keeping residents in care (£450.00) per week. Where are their human rights of 'helping individuals to maintain relationships and continue to be themselves' or indeed my Husband and my human rights for the same reasons. Our life is so taken up by looking after my in laws we have no quality of life as a couple.

Jacqui Gallagher
21 Jan 2008

"Diversity" is discrimination, it is not equal opportunity, please refer to the Oxford dictionary. People should not be assessed upon their colour, race, culture and sex etc but, on the pure merits of their abilities which are on offer to an organisation.

Paul
21 Jan 2008

I really think that, Human Rights protection must not only be applied to or for those who need it most. Dear Katie Ghose may not be in need of the Human rights protection because she hasn`t be in any worst situation in her life. But this is a universal matter. Even i think that diversity isn`t discrimination. And the oxford dictionary can always be challenged..Diversity means, the quality of being different or varied or a point of difference while discrimination is unfair treatment of a person or racial group, minority all these based on a prejudice..like the common sense that all black people are potential drug dealers in Glasgow for exemple. This is a discrimination.

Charles ATANGANA
06 Feb 2008

The following article appeared in a local Spanish Newspaper (SUR in English) which we thought should be given further consideration for the United Kingdom (to try and potentially restore some harmony here) and perhaps be further discussed generally? General News PP leader proposes integration bill if he wins Natalia Araguás Immigrants would have to learn Spanish, pay taxes and respect Spanish customs Spain’s Opposition leader, Mariano Rajoy, said this week that if the Partido Popular wins the next general elections, he will introduce a bill for an “integration contract”, which will become legally binding and will allow for immigrants to be expelled from the country if they don’t comply. The State would guarantee foreigners the same rights and obligations as Spanish citizens and would “respect their customs as long as they do not contravene the Constitution”. In return, any foreigner who wanted a residence permit for more than a year would have to agree to obey Spanish law, learn the language, respect the customs, pay taxes, and “return to the country of origin if he/she does not find employment”. He intends to set up a state employment agency which will be able to offer work contracts to would-be immigrants while they are still in their home country and which will take into account the potential of the worker to integrate in Spain. Rajoy also proposes bringing back a legal system by which foreign criminals can be expelled from the country, even if they have acquired a residence permit. He would like similar policies to be brought in throughout Europe, with “effective” border controls. © Copyright Diario SUR Digital, S. L.

Neil & Jackie Lewis
08 Feb 2008

I am sad that even the EQUALITIES like many of uk services does not work. I have written to DRC,Equalities unit of my local authority LBS London Borough Southwark. Past five years as a disable person I have been peehed on by children of tenant above( have cctv evidence timed & dated), car spate at so many times, damagd 3 times, been threatened, son threatened, escrement in garden etc - all know in local authority and very little done - but LBS SASBU do not understand or reconise I have rights under discrimination Southwark only understand certain race issues - disabilities and being bullied harassed does not count. Even though on cctv "cripple c--t" when questioned why they said this - not meaning her, my sister ? LBS CRAP GOVERMENT CRAP AND THIS IS CRAP no one helps me disabled afraid alone !!!! what rights NIL

jane
13 Feb 2008

Jane, why not write about your concern to Katie Ghose the director of the British Institute of Human Rights or to CEHR after all it is said that individuals also have Human Rights in this Country.

Chander
15 Feb 2008

stunned, appalled etc, i 'fell' across this whilst looking at disabled provision in schools!! i know a bit bizarre but it grabbed my attention as i really could not believe what i was reading. i felt that we had gone back a couple of generations!! after the tradegy in jersey and some of the recent reports on patients in care homes in the uk i cannot believe that this has fallen by the wayside or being considered a minor loophole. this should be slapped in the face of every single persons local mp, be slammed in the face of every politician. Mostly screamed loudly from every single rooftop!! i am sure that most people are unaware of the situation, i was until now. the only way forward is pressure and there is no pressure like an infuriated general public. i sugguest gmtv as a start, they are most helpful in taking up worthwhile causes. flyers in hospitals etc anywhere that this can be put in the public arena has to be done. as someone who was a fully operational bank manager and is now disabled and also has a little girl with cp and hp i stand by the most applicable phrase of all THERE FOR THE GRACE OF GOD GO I, for whatever reason any one of us could be in need of the protection of the human rights act in years to come, why of why should there be anyone excluded from it! this must be the most obvious abuse of discrimination i have ever seen. please be aware i would offer my help in any way, i am now about to email my local mp valerie davis

valerie davis
26 Feb 2008

A group of Humans wrote the Human Right act according to the interest of the group to which they belong so what use it would be to write to MP who does not care for Equality and sees power over minority more important than Human Rights. MP in your Country has watched my suffering over 7 years and has failed to reply my letter written some 5 months ago. He is white and I am Indian. Would you save your Local Government or a Indian worker's race complaint I ask a white person in UK?

Chander
29 Feb 2008

I work in the Learning difficulties/Disabilities and Mental Health Sector (private hospital)as an Adult Education Tutor. I am all for Human Rights but within this sector my job role is to educate and rehabilitate people in care yet my job is hindered by Human Rights. I can never be seen to be being punative and can only encourage my patients to participte however the Human Rights card is constantly played allowing patients to sit around and do nothing at all, I do not see this as constructive and I feel I am failing, people in this sector require support and boundaries most staff now are terrified of being seen to infringe peoples human rights. I feel the balance has been tilted to the right and to a degree feel that effective care and educational provision is being hindered, to the point that people will remain within the mental health system instead of reaching their full potential in life and expereince life within their own communities - this is a great shame. Human rights appears to be very much a double edged sword within this sector!!

Sarah Voy
02 Mar 2008

If we are concerned about Eguality & Human Rights then we need case workers and less speakers and policy makers. On the subject of mental health, I have been made to retire early by the mental health professional who has not been able to define the name of illness, the cause or the treatment of the illness that I suffer from. The Works and pension are happy to pay me weekly state benefit because I have been cerified as unable to work. I am British Indain worker who said that I had race problems at work.

Chander
03 Mar 2008

Hello, Im 14 years old and I am writing concerning our rights. At my high school the teachers have started to carry out searches on students for makeup, Ipods and Phones, they are searching bags, lockers, and blazers, and now also they are starting to search undergarments too because some girls hid their phones in their bras. I think this is against our human rights and is against our privacy rights, Also some student need their phones to get home if they get home by a bus or walk home, for ther own saftey. Also on websites I have visited and friends I have spoken to I have been told that we are only allowed to be searched with good reason, (e.g. Drugs, guns, knifes, ect.) and your ONLY allowed to be searched by POLICE. Is this true? What should we do about it?

mags
10 Mar 2008

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