Access to services, treatment and support 

On this page

• Social care codes of practice
  
• Mental health
  
• Making reasonable adjustments
  
• Waiting lists
  
• Treatment
  
• Residential care
  

 

Social care codes of practice

In England and Wales, the General Social Care Council is responsible for increasing the protection of service users, their carers and the general public by regulating the social care workforce and by ensuring that standards within the social care sector are of the highest quality. It has developed codes of practice for everyone working in the social care sector, which include information on protecting the rights and promoting the interests of service users and carers.

In Scotland, the Scottish Social Services Council (SSSC) is responsible for registering people who work in the social services and regulating their education and training.  Its role is to increase the protection of people who use social services, to raise standards of practice and to increase public confidence in the sector. 

When a social service worker applies to register with the SSSC, they must agree to abide by the Code of Practice for Social Service Workers, which sets out the conduct expected of social service workers and informs people who use social services and the public about the standards they can expect. The SSSC can investigate the conduct of registered social service workers.

When an allegation of misconduct comes to the attention of the SSSC, it will consider whether there is an issue about a social service worker’s suitability to remain on the register.

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Mental health

Making sure that people have equal access to mental health care poses particular challenges. The users of such services may be less able than others to articulate their views or to communicate the fact that they are unhappy with their treatment or feel they are being discriminated against. If you are using mental health services, you may be a disabled person according to the legal definition. However, health and social care providers should not automatically assume that you are covered by the Disability Discrimination Act 2005 when they make decisions about your needs, or provide facilities for you. Other legal duties may take precedence over the Disability Discrimination Act duties.

In cases where a person suffers from a severe mental health problem, and their doctor or other clinician decides that they should be detained or treated against their will, this is a clear interference with that individual’s human rights. However, such interference may be justified or necessary because the decision to detain or treat someone concerns not only the particular individual, but also the risk that they pose to themselves or those around them.

Decisions about detaining or treating patients suffering from mental disorders or from lack of capacity are governed by the Mental Health Act 1983, the Mental Capacity Act 2005, the Mental Health Act 2007, the Adults with Incapacity (Scotland) Act 2000, and the Mental Health (Care and Treatment) (Scotland) Act 2003 and are beyond the scope of the Equality and Human Rights Commission’s remit.

You can find out more about mental health issues by contacting one or more of the following charitable organisations:

Mental Health Foundation
http://www.mentalhealth.org.uk/

MIND
http://www.mind.org.uk/

Rethink Severe Mental Illness
http://www.rethink.org/

The Sainsbury Centre for Mental Health
http://www.scmh.org.uk/

Scottish Association for Mental Health (SAMH)
http://www.samh.org.uk/frontend/index.cfm

SANE
http://www.sane.org.uk

Young Minds
http://www.youngminds.org.uk/

Office of the Public Guardian
http://www.publicguardian-scotland.gov.uk/

Mental Welfare Commission for Scotland
http://www.mwcscot.org.uk

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Making reasonable adjustments

In most circumstances, health and social care providers must make reasonable adjustments to remove any barriers – physical or otherwise – that could make it difficult for disabled people to use their services or prevent them from using them altogether.

Adjustments to physical features

Health and social care providers must make reasonable adjustments to buildings such as surgeries, hospitals or clinics, by removing or changing physical features that make it difficult or impossible for disabled people to access their services. These features could include:

• stairways and steps
• kerbs
• surfaces and paving
• parking areas
• entrances and exits (including emergency escapes)
• doors and gates
• toilets and washing facilities
• lifts and escalators.

As far as possible, the effect of the adjustment should be to make services as accessible to disabled people as they are to other members of the public.

Example

A hospital arranges for a specialist to meet someone who has a walking difficulty in a location nearer to the hospital’s entrance.

Auxiliary aids and services

Making reasonable adjustments can also mean providing auxiliary aids or changing the way services are delivered to make them accessible to disabled people. Larger organisations will be expected to do more than smaller ones; for example, hospitals may be expected to install induction loops at information or reception counters, whereas small GP surgeries might have a portable induction loop that could be worn by the doctor or receptionist when requested.

Example

A dentist surgery keeps a record of patients with hearing impairments. Receptionists can go directly to those people to let them know when the dentist is ready to see them, rather than just calling their names.

Adjustments to policies and procedures

Health and social care providers have a duty to monitor their policies and procedures to ensure that their services and treatment for disabled people are accessible. This can mean allowing people to make appointments in different ways; for example, by phone, email, text and in person. It could also mean making sure that staff are trained to meet the needs of disabled people.

Example

A GP surgery does not allow pets in the building, but amends its policy to make sure that people with assistance dogs are allowed to bring them inside.

Find out more about your rights of access if you are disabled.

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Waiting lists

Waiting lists are often standard in the National Health Service, and do not generally constitute unlawful discrimination, unless you are treated less favourably than another person in similar circumstances because of your race, sex, disability, religion or belief, or sexual orientation.

Example

A woman phones to book a urology appointment at her local hospital. She is told that the only available appointments are for men, and is put on a waiting list.

If the reason for this is that the urologist who specialises in treating men does not have the required qualifications or expertise to treat women, because it is a different specialism, and the urologist who treats women has a separate waiting list, the hospital’s action could be justified.

However, if there is no difference in the health treatment of men and women, and no separate waiting lists, this could constitute unlawful discrimination on the grounds of gender.

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Treatment

Health and social care providers must not discriminate unlawfully on grounds of race, sex, disability, religion or belief or sexual orientation in deciding what treatment to give you as a patient. This section looks at:

• rights you have when receiving treatment in different contexts
• choices you have over the kind of treatment you receive
• situations in which you may be denied access to treatment, or where treatment may be withdrawn.

Example

A clinic refuses to offer fertility services to a lesbian couple, because they are not heterosexual. This constitutes direct discrimination on grounds of sexual orientation.

Personal autonomy and medical treatment

If, as a patient, you have the capacity to make decisions about your own treatment, then you also have the right to refuse any proposed treatment, even when this may lead to your death. However, a doctor (or any other person) cannot provide treatment with the intention of ending a patient’s life, even when this is requested by a patient who has the capacity to make that decision. To do so would be a criminal offence.

There is an argument that this law conflicts with the right to life and that a person who has the mental capacity to make an informed decision to die, but is too ill to be physically capable of suicide, ought to be allowed assistance from doctors or family members without those people having to break the law. This argument has been rejected by the European Court of Human Rights, which ruled that the right to life does not confer a right to death.

Sometimes medical staff consider that a patient is close to death, or that the quality of life that they have is extremely poor. In such circumstances, they may consider placing a ‘Do not resuscitate’ (‘DNR’) note on a patient’s file. This means that if the patient’s heart or breathing stops, the medical staff will not take the steps that would otherwise be taken to revive them.

It is a breach of your right to life for a DNR order to be placed in circumstances when you do not consent. In cases where you do not have the capacity to consent, consideration must be given to what is in your best interests. Where there is a dispute, such as between doctors and the family, these questions may be considered by a court.

In very limited cases, treatment may actually be withdrawn from a patient where to continue to provide it would be futile; for example, because the patient is in a vegetative state with no realistic prospect of recovery. Again, the test requires consideration of the patient’s best interests, and many of these cases will be determined by the courts.

‘Advance directives’, also known as ‘living wills’, allow you to make decisions about treatment that you wish or do not wish to have, in the event of losing the capacity to make decisions about your treatment. These will be binding when certain legal requirements are met. Even if an advance directive is not technically legally valid, it should be taken into account when consideration is given as to what is in your best interests if you are a patient.

Providing medical treatment

The question of what treatment for which patients should be funded from the limited NHS budget is a topical issue at present. The general position is that a patient cannot compel a doctor to provide a treatment which the patient wishes to have but the doctor does not consider appropriate. However, the increasing availability of extremely expensive drugs for chronic and life-threatening conditions which have no negative effect, but may have limited beneficial effect, has led to conflict as to the extent to which there is a ‘right to treatment’ when medically appropriate treatment is available. 

When making a decision about which patients should receive a particular treatment, NHS organisations must consider how to make sure they comply with their duty not to discriminate and to promote equality.

Example

In a recent case, the High Court found that guidelines from the National Institute for Health and Clinical Excellence (which generally provides guidance applicable to England and Wales) on the use of medication for patients with moderate Alzheimer’s disease did not comply with the organisation’s legal duty not to discriminate. This was because the guidelines did not address the position of patients with learning difficulties, or lack of proficiency in English.

This meant that the standardised tests for assessing the severity of dementia were likely to produce unreliable results.

This potentially discriminated against these groups of patients because it meant they were less likely to be treated with a particular drug.

Deportation leading to withdrawal of treatment

It has been successfully argued that, where a non-British individual would otherwise be liable to be deported because he or she has a criminal conviction, the deportation would be unlawful if it meant that the individual would be prevented from receiving life-saving medical treatment that he or she is receiving while living in the UK.

However, a similar case was unsuccessful for another individual (in this instance not a criminal, but an unsuccessful asylum seeker), because the person was not close to death and could continue to live healthily for decades with treatment.

Poor treatment within a medical or care setting

Abuse and neglect within a medical or care setting could amount to a breach of Article 3 of the European Convention on Human Rights (freedom from torture and inhuman or degrading treatment or punishment). However, in order for Article 3 to be used, such treatment would have to be serious. Failing to reach standards desired by residents or their relatives, or failing to adhere to ‘best practice’, is unlikely to qualify as a breach of Article 3.

Examples of treatment which might breach Article 3 would be:

• use of restraint (although this depends on the circumstances)
• leaving a patient for a lengthy period in their own waste
• restricting or refusing food or water
• restricting or refusing access to sanitary facilities.

Even if care is not provided by a public authority (and therefore the individual cannot challenge the provider of care using the Human Rights Act 1998), a public authority may have a duty to inspect the care provider and investigate the quality of care being provided. If the authority fails to stop an abuse of human rights, this may itself be a further abuse and an individual can take action to challenge such a failure.

It is also unlawful to discriminate on grounds of race, gender, disability, sexual orientation or religion or belief when providing treatment within a medical or care setting.

Example

Staff in a nursing home harassed and mistreated particular residents because they were Asian. This constitutes direct racial discrimination.

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Residential care

If you live in a residential care facility, that place is your home and therefore Article 8 of the European Convention on Human Rights (respect for private and family life) could apply to the arrangements surrounding your life.

This means that the following sorts of examples could constitute a breach of your human rights if you are a resident in a social care facility:

• A decision to close a facility which has been your home for a period of time.
• A decision to house you in a separate residential facility from your husband, wife or civil partner, where it is difficult for you to have contact with each other.
• A decision to place you in a facility where it is difficult for you to maintain contact with family and friends.

Article 8 rights are not absolute rights and therefore none of the examples above would necessarily be unlawful. In considering lawfulness, certain questions will be crucial, such as what the practical alternatives would be, and the extent to which you have been consulted on and have had the chance to contribute to the decision.

In a judgment given in 2007, the House of Lords found that a private care home providing accommodation to elderly residents is not bound by the European Convention on Human Rights when providing such care on behalf of a public authority.

Article 8 does not provide a right to a home or a right to funded care. However, human rights principles have played an important part in determining the law as to funding of residential care. In 2000, the Court of Appeal reached a very important decision setting out the responsibilities of local authorities and the NHS in providing residential care. The decision is crucial as NHS care is provided without charge to the recipient, whereas care provided by local authorities will generally be subject to means-testing. In Scotland, there is a government commitment to free personal care for the elderly.

Find out more about your rights in housing.

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