Creating a fairer Britain
Title of guidance:
Year published: 2010
Length: 54 pages
Format: PDF (320Kb)
Other formats: apply to BIHR for large print, audio, electronic disk - phone: 020 7549 0550 / email: firstname.lastname@example.org
Producer/ Publisher: British Institute of Human Rights
Type of organisation: Training / consultancy organisation
Adult Social Care | Health | European Convention on Human Rights | Human Rights Act | GB wide| Case studies | External service guidance
Audience: Service management | Front-line service personnel | Policy managers and directors
Topics: Human rights | restraint | proportionality | blanket policies / individual assessment | autonomy | mental capacity | residential care | home care | dignity | privacy | nutrition | positive obligations | torture/inhuman or degrading treatment
This guide is written directly for older people; it will also be useful for those working with older people in the health and social care fields. It is written in non-legal language and contains numerous examples based on legal cases and on the use of human rights arguments outside the courtroom. The guide explains which human rights are most relevant for older people and how these rights might come into play in settings such as hospitals, residential care homes and home care. It contains practical advice and information about how an older person, or their advocate, can challenge unacceptable practice either informally or via complaints procedures or by taking a case to court. It offers a comprehensive directory of contacts and sources of advice for older people and their advocates.
This guide focuses on the three human rights that have been used most widely to protect older people:
For each, it explains commonly used terms and concepts and the types of practice or treatment that might infringe the right. Because the guide is written for older people and their carers or advocates, the emphasis is on identifying and challenging unacceptable practice. Staff in public authorities might usefully read the guide in conjunction with guidance designed to support good practice in protecting human rights; some references are provided below.
The guide explains that this right is 'absolute': this means it may never be breached, restricted or limited.
The guide explains that public authorities have a positive duty to take proactive steps to protect people from this kind of treatment even where it is not directly caused by their staff members. For example, if a public authority is aware that a relative or friend who is caring for an older person at home may be abusing them, it has a duty under the Human Rights Act (HRA) to investigate or intervene.
The guide also notes that the treatment does not need to be deliberate it is the impact it has that matters. For example, if staff in a care home unintentionally leave residents in soiled bed sheets for long periods because they are understaffed, this may still amount to inhuman or degrading treatment.
Other situations that may, in some circumstances, involve inhuman or degrading treatment include:
Mrs S, aged 102, felt isolated, disrespected and neglected while she was in hospital. Despite being blind, her meals and drinks were left on a trolley - in most cases without letting her know they were there. For the most part, staff also did not offer assistance with eating or drinking. As a result, many meals were removed untouched. Mrs S also suffered a great indignity when she asked for a commode, but was told by a nurse that she could use her incontinence pad. This kind of treatment could amount to inhuman or degrading treatment.
Source: Your Human Rights - a guide for older people, p. 14, citing Age Concern: On the Right Track?, 2008
The guide notes that this is right is not absolute but is qualified; this means that it may be interfered with in order to take account of the rights of other individuals
and/or the wider community.
Decisions to interfere with a right must be:
Proportionality is a central principle of the HRA. As this guide explains, a proportionate response to a problem is one that is appropriate and not excessive in the circumstances in other words, that does not use a sledgehammer to crack a nut. Public authorities must be able to show that they have acted in a proportionate way when interfering with a right; otherwise the right will have been breached.
The guide explains the wide-ranging nature of the right to respect for private and family life, which covers issues such as:
It offers examples of how this right protects:
Public authorities must, in some situations, take proactive steps to ensure that this right is fulfilled. This may include providing extra resources, such as adequate support to enable an older person to remain living at home rather than moving into residential care.
Case example 1:
Help the Aged (now Age UK) received a call from an older woman who was discharged from hospital without a proper assessment. When she got home, she found that she could not use the toilet as she needed rails to push herself up. She contacted the occupational therapist, who said she would have to wait at least two months and could use incontinence pads in the meantime. She was not incontinent. She was upset by the indignity and felt suicidal. This kind of situation could be challenged as a breach of the right to respect for private life, and may also amount to inhuman and degrading treatment.
Source: Your Human Rights - a guide for older people, p. 26, citing SeniorLine, Help the Aged in Rights at Risk - Older People and Human Rights, 2005
Case example 2:
A residential care home for older people regularly woke all residents at 5am, because this fitted best with staff shift patterns. None of the residents were able to choose what time they would like to wake up. This could be challenged as a breach of the right to respect for private life.
Source: Your Human Rights - a guide for older people, p. 21, citing Age UK Helpline
This section of the guide covers the right to life in relation to issues such as:
The guide provides a basic introduction to the concept of mental capacity - that is, the legal test used to decide whether a person is able to make decisions for themselves or not.
An older woman is admitted to hospital with a chest infection. Medical staff place a 'Do Not Resuscitate' order on her file, because they consider that as an older person, she has a low quality of life which should not be prolonged. They have not consulted with her or any of her family members. This kind of situation could be challenged as a breach of the right to life.
Source: Your Human Rights - a guide for older people, p. 29
Equality issues are not directly addressed in the guide.
We hope that you found the resource helpful and easy to use. Please let us know about other guidance or references that you think we should include. Send us your feedback.