Equality and Human Rights Commission

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.

• The Human Rights Act is not just about preventing public authorities from taking certain actions. It also requires them to take proactive steps to prevent breaches of human rights from happening in the first place, no matter who or what is causing the harm.
• Public authorities must not 'use a sledgehammer to crack a nut'; if they cannot show that they have acted in a proportionate way when interfering with a right, then the right will have been breached.
  

This guide focuses on the three human rights that have been used most widely to protect older people:

• the right not to be tortured or treated in an inhuman or degrading way
• the right to respect for private and family life, home and correspondence, and
• the right to life

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 right not to be tortured or treated in an inhuman or degrading way

The guide explains that this right is 'absolute': this means it may never be breached, restricted or limited.

• inhuman treatment means treatment causing severe mental or physical harm
• degrading treatment means treatment that is grossly humiliating and undignified

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:

• requiring people to use incontinence pads rather than assist with toileting
• neglect leading to bed sores
• failing to offer assistance with eating or drinking
• excessive force used for purpose of restraint
• calls for help being routinely ignored
• washing or dressing you, or leaving you unclothed, without regard to your dignity
• knowingly leaving an older person living in squalid council accommodation

Case example:
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 right to respect for private and family life

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:

• lawful
• necessary, and
• proportionate

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:

• privacy
• personal and sexual relationships
• participation in the community
• physical and mental well-being, and
• culture and language

It offers examples of how this right protects:

• being able to live together with your family and, where this is not possible, having regular contact
• personal autonomy (making your own choices about your life, including medical treatment)
• human dignity
• privacy concerning your body
• access to your personal information, which should only be withheld from you or shared with others for a reason that is lawful, necessary and proportionate, and
• respect for your home

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

The right to life

This section of the guide covers the right to life in relation to issues such as:

• 'Do Not Resuscitate' orders
• Refusal to undergo medical treatment
• Active euthanasia (the practice of actively assisting a terminally ill patient to die, which is unlawful in the UK)
• Advance directives (also known as 'living wills')
• Decisions to provide or withhold medical treatment
• Malnutrition and dehydration
• Inappropriate medication, such as the over-use of sedatives or anti-psychotic drugs to control the behaviour of people with dementia, and
• The duty of public authorities to conduct inquests into deaths in suspicious circumstances and to involve families in the process

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.

Case example:
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

Related equality messages (if applicable):

Equality issues are not directly addressed in the guide.

Date of review

24.02.2011

• Commission for Social Care Inspection (2007) Rights, risks and restraints: An exploration into the use of restraint in the care of older people
  http://www.cqc.org.uk/_db/_documents/restraint%5B1%5D.pdf
• Nursing and Midwifery Council (2009) Guidance for the care of older people
  http://www.nmc-uk.org/Documents/Guidance/Guidance-for-the-care-of-older-people.pdf
  

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.