Key legislation - Articles relevant to Dignity in care
All the articles of the Convention covered in the HRA may relate to people who use services and their carers in certain circumstances, and practitioners should be aware of them. It is rare, due to issues including awareness, mental capacity or ability, for vulnerable people to take matters to the courts. The British Institute for Human Rights, however, has shown in its ‘Changing Lives’ report (2008) that simply using the language of human rights to argue for improvements in the care and treatment of an individual can make a huge difference. Pointing out that service providers may be in breach of the Act can be enough to bring about positive changes.
Article 2: a right to life
Individuals have the right to have their life protected by law and the state has positive duties to protect life. The positive obligations on public bodies to protect life mean that failure to take necessary precautions may be a breach of Article 2. Cases where breaches of Article 2 have been claimed include destitute asylum seekers who could not access healthcare or subsistence and prisoners forced to share cells with violent cellmates who may place their lives in jeopardy.
Examples of potential breaches of particular relevance to organisations in the field of health and social care might include:
- failure to observe necessary procedures to reduce the risk of infections in hospital and care settings
- failure to protect a vulnerable person in a residential care home from an abusive resident, or a failure to investigate any subsequent death properly
- failure to assess and treat someone in care who was at risk of suicide and to take reasonable measures to protect them
- a day centre user dying as a result of the maladministration of drugs by unqualified staff
- staff in a care home failing to follow a doctor's recommendation to check hourly on a resident during the night
- failure to provide adequate nutrition and hydration and to assist with eating where necessary.
In order to protect themselves from being challenged under Article 2, organisations should ensure that health and safety is a priority by providing regular staff training and ensuring adherence to policy. Risk assessment should identify, minimise and manage risks within the premises and of routine practices.
The closure of a residential care home where the residents are frail poses particular challenges. Policies should be in place to ensure that the risks to residents are minimised and managed. They should, for instance, include a medical assessment of the risk of transfer when assessing residents' needs, consideration should be given to moving staff along with residents, and transfers should be postponed until a time when any risk is minimised. For example, moving vulnerable people during the winter months may increase their risk of death.
Age UK (2011) argues that human dignity is at the core of this right. Article 3 could be relevant to failures by public services to protect vulnerable adults from abuse or neglect. Practices such as tying care home residents into chairs would almost certainly be considered inhuman, and it could be argued that failure to prevent and treat bedsores could be a breach of Article 3.
Every local authority and healthcare organisation should have policies and procedures in place to protect vulnerable adults from abuse, neglect and harm and to act promptly and proportionately should abuse occur. Local authorities have a responsibility to ensure that any care home in which they place residents adheres to local safeguarding procedures. Residents, families and staff should be aware of how to take up concerns about inhuman and degrading treatment. Robust whistleblowing procedures should also be in place.
Recent cases have indicated that the threshold for breaching human rights in this regard is very high and does not reflect the level at which most people would consider dignity to have been breached.
The more vulnerable the victim is the more likely it is that the threshold of minimum severity will be met. The assessment of the minimum threshold is relative and depends on all the circumstances of the case including the duration of treatment, the physical or mental effects and the sex, age and state of health of the victim. A victim’s inability to complain coherently, or at all, about how he or she is being affected by any particular treatment, is also taken into account.EHRC 2012
The case of Elaine McDonald (McDonald v Kensington and Chelsea) highlights the high threshold for inhuman or degrading treatment. Ms McDonald had been receiving support with getting to the toilet overnight from the Royal Borough of Kensington and Chelsea. However, the council decided to withdraw the support and Ms McDonald was expected to use incontinence pads instead, even though she was not incontinent. Ms McDonald took the case to Judicial Review and included a claim under Article 8 that she had been exposed to risk and indignity. Both the High Court and the Court of Appeal found in favour of the local authority. Despite Ms McDonald’s view the local authority argued that the use of pads was less of a threat to dignity than the support of a carer and that the risk of falls would be minimised. The Article 8 claim was then considered in the Supreme Court but the decision again was against Ms McDonald. Age UK called this decision ‘shameful’ and the Equality and Human Rights Commission called it a ‘significant setback’ saying that as a result ‘older people's human rights to privacy, autonomy and dignity will often be put at serious risk.’ (EHRC 2011)
Despite the high threshold, the approach of a good service ought to be aimed at preserving dignity, rather than at the level of indignity the law is prepared to tolerate.
Article 5: the right to liberty and security
This means that a person can be detained only in certain circumstances, following a proper, lawful procedure that provides the detainee with opportunities to challenge their detention. The MHA (1983) provides such safeguards for people detained under it. The significance of Article 5 in relation to health and social care provision was illustrated by the Bournewood case where the European Court of Human Rights held that the detention of adults who lack capacity, and are being deprived of their liberty without due process was in breach of their Article 5 rights. The judgement led to the introduction of the Deprivation of Liberty Safeguards, which protect people who lack capacity but are not eligible for detention under the MHA.
Article 6: the right to a fair trial and to innocence until proved guilty
This concerns the requirement for civil rights to be fairly determined, and for criminal trials to contain full procedural safeguards. Article 6 has been the most litigated of the Convention articles, particularly in the criminal sphere. Article 6 rights arise when, for instance, a care worker is placed (even temporarily) on a list of people prevented from working with vulnerable adults.
The basic right is to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, and each of these elements of the right is important. Article 6 does not only apply to court hearings. Decisions by public bodies that deprive people of their rights should also comply with the Article.
Decisions and decision-making processes should be open, fair, timely and impartial, and should be communicated in a way that will not intimidate or confuse the recipient. Files or other related records should demonstrate a clear trail of the decision-making process and never express biased or unsubstantiated opinions.
Safeguarding procedures should comply with this, for example in a care home where a person with dementia makes allegations against another resident of inappropriate sexual behaviour. Even if that person has been accused of similar behaviour before, they must be treated fairly and should have access to independent legal advice.
Article 8: the right to respect for private and family life
The recognition and protection of human dignity is one of the core values – in truth, the core value – of our society and, indeed, of all societies which are part of the European family of nations and which have embraced the principles of the Convention...The other important concept embraced in the “physical and psychological integrity” protected by Article 8 [of the Convention] is the right of the disabled to participate in the life of the community...This is matched by the positive obligation of the State to take appropriate measures designed to ensure to the greatest extent feasible that a disabled person is not “so circumscribed and so isolated as to be deprived of the possibility of developing his personality”.[R. (on the application of A and B) v East Sussex County Council 2003] Justice Munby 2003
This article covers a wide range of issues that are relevant in the fields of health and social care, for example the right to respect for one's house and belongings, the right to choice in personal relationships and the right to confidentiality of personal data. The term ‘private and family life’ is broad and includes personal autonomy, identity and integrity. Aspects of a person’s identity can include, for example, gender identification or sexual orientation (Stroink and Linden 2005).
Article 8 is the most open to interpretation and prompts particular dilemmas, because a person's assertion of Article 8 rights might conflict with professional and legal duties. A court has to balance society's interests against those of the individual, between the rights enshrined in Article 8 and the rights and responsibilities of other people. Article 8 is qualified and not absolute. This means that the right can be interfered with, but only where that interference is necessary, legitimate and proportionate. For example, the state can interfere with a person's right to a family life if a child will suffer significant harm by remaining with the family, but not because the child will have a better standard of living if taken away from the family.
Staff of public bodies, such as nurses or care assistants, must respect decisions made by individuals in their care, unless interventions are legally sanctioned and required.
The qualifications on Article 8 mean that an individual's freedoms must always be balanced against public safety. The state has a responsibility that is set out in Article 2, the right to life, to protect the safety of its citizens. So, as long as the interference with the person's private life is legitimate and proportionate, the rights of individuals can be breached.
Article 8 has also brought about changes in mental health law, allowing the patient themselves to apply to the County Court for the displacement of their nearest relative where the person is ‘not a suitable person to act as such’.
The MCA 2005, which is built on human rights principles, helps resolve difficulties that arise through impaired mental ability. It protects and empowers people who lack capacity to make decisions or to consent to care and treatment in a variety of ways. It is important to maximise the person’s capacity wherever possible, to enable them to make their own decisions. Practitioners must act in the best interests of the individual concerned. What actually is in someone's best interests depends on the circumstances of each individual case. Restraint should be avoided and only used when it is essential to prevent harm to the person and where it is a proportionate response to the likelihood and seriousness of harm to the person. Where it is used it must be for as short a time as possible.
Here are some examples of how claims under Article 8 have been interpreted in the courts:
- Mrs Bernard, a severely disabled woman, lived with her family in inappropriate local authority accommodation. The lack of accessibility in the property meant Mrs Bernard was largely confined to one room, which she shared with her husband and two younger children, unable to access toilet and washing facilities. Social services had assessed her needs and recommended special adaptations so that Mrs Bernard could access the bathroom. However they did not follow the recommendations and provide the adaptations. The High Court found that the local authority had failed to respond to the family's needs. The court said that the local authority had positive obligations to enable the family to live as normal a life as possible and to secure Mrs Bernard's physical integrity and human dignity. The lack of action by the local authority was a breach of Mrs Bernard's right to respect for family life, under Article 8 of the Convention [R. (Bernard) v Enfield LBC (2002) EWHC 2282].
- A landmark case found that a health authority had breached Article 8 of the ECHR when it decided to close a nursing home for financial reasons. A resident, Ms Coughlan, had been promised, when she moved in, that it would be a ’home for life’. The Court of Appeal found that the health authority’s previous commitment that the home would be permanent had not been properly taken into account in their decision to close the home. There had been no demonstration of public interest in the closure and to force Ms Coughlan to move would be an abuse of its power (R. v North and East Devon Health Authority ex parte Coughlan 2001)
- A local authority had made assurances to Mr Lindley that he could move to supported housing. However, on the deterioration of his condition and reassessment the local authority withdrew the offer. Mr Lindley challenged the decision but the court found that he had not relied on the assurances made to him. The court prioritised Mr Lindley’s welfare needs over the commitment made to him and his expectations [Lindley v Tameside Metropolitan Borough Council (2006)].
Article 8 also has an impact on the way we obtain and keep confidential information. Asking someone for details of their medical condition in the hearing of other people, for example, may be a breach of the privacy protected by Article 8. In certain circumstances, it might be necessary to share confidential information, but disclosure of confidential information has to be proportionate, which means people should only be given the information on a 'need to know' basis. What is required is an assessment of the reasons for disclosing information and a balance must be reached between those reasons, the common law duty of confidentiality and a person's rights to privacy.
Article 10: the right to freedom of expression
Everyone has the right to hold opinions and to express their views on their own or in a group. This applies even if these views are unpopular or disturbing. Article 10, however, makes it clear that it is legitimate for the state to impose restrictions on freedom of expression in certain circumstances. These constraints must be prescribed by law and be necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Article 10 can cause difficulties because different people have different levels of tolerance. The freedom of an individual to express themselves can cause dilemmas in situations of group living or where people have to enter an environment in the course of their work. For example, an adult resident in a care home may want to display a poster in their room containing adult material of a sexual nature. This may be offensive to members of staff who need to enter the room to provide assistance or to clean it.
In such situations the best approach is probably to discuss the matter and try to resolve it in a way that supports the views of both sides. So, for example, staff could explain that the poster may cause offence and the resident could be asked to display it on the inside of the wardrobe door or keep it in a folder instead of on the wall.
Article 14: prohibits discrimination in the 'enjoyment' of Convention rights
This is not a freestanding article; it can only be invoked when another article of the Convention has been engaged. This means that the discrimination affects an area that falls under another article of the Convention.
The grounds for discrimination are very broad; the article forbids discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin.
There is much potential for litigation in areas where health and social care services are concerned. It is important for commissioners to ensure that services are as accessible to groups with a potential disadvantage as they are to the wider population, for example ensuring equal access to healthcare or community services for people with learning disabilities. Staff should be alert to possibilities of discrimination, for example, limiting people's experience because of their disability. Any limits on activities should be justified, and those limits kept under review.