Key legislation - Human Rights Act 1998
In this section:
- Understanding the workings of the Human Rights Act
- The legal mechanisms for enforcing human rights
- Articles relevant to Dignity in care
See also the section on Other key legislation.
Quite simply we cannot hope to improve people's health and wellbeing if we are not ensuring that their human rights are respected. Human rights are not just about avoiding getting it wrong, they are an opportunity to make real improvements to people's lives.Rosie Winterton, Minister of State for Health Services (Equality and Human Rights, 2007)
The Human Rights Act (HRA) came into force in October 2000. It enables individuals to enforce 16 of the fundamental rights and freedoms contained in the European Convention on Human Rights (ECHR) in British courts. This makes Parliament and public bodies more accountable to UK citizens through the courts. The fundamental rights include rights that impact directly on service provision in the health and social care sector. Rights particularly relevant to dignity in care include the right to life, the right not to be subjected to inhuman or degrading treatment and the right to a family life. A balance has to be reached between rights and responsibilities. Not all rights are absolute and frequently practitioners are required to balance competing rights.
The origins of the HRA 2000
British lawyers were actively involved in the drafting of the ECHR; the UK signed it in 1951 and the ECHR became binding upon its signatories in 1953. However, the UK for many years refused to incorporate the Convention into its domestic law. This meant that enforcement of the Convention's provisions was through the European Court of Human Rights in Strasbourg and not through the British courts. Since the implementation of the Human Rights Act in 2000 many people have relied on the Act to assert their individual rights under the Convention. Perhaps more importantly, public services have reviewed their provision to ensure that they comply with the legislation.
The primary purposes of the HRA are to enable the rights set out in theECHR 1950 to be enforced through the UK courts and to provide a check on the activities of Parliament and public bodies. The most significant force behind the ECHR was the Second World War and its aftermath. The ECHR was designed to prevent a repeat of the rise of fascism and totalitarianism and to restrict the oppression of individual rights in the name of the state and in the name of the majority. As Lord Justice Sedley put it in a lecture to the Legal Action Group:
The Convention is a child of its time – the post-war years when the states of western Europe tried to set their faces both against the devastation of the recent past and against any new form of totalitarianism. So the Convention says many important things about due process, personal integrity and free speech and ideas; but nothing directly about the most elementary of all human needs, a right to enough food and shelter to keep body and soul together.Sedley (2003)
Dignity in Care's relationship to human rights
In the UK the difficulty in defining dignity also stems from the fact that it does not appear explicitly in the 1950 ECHR, and thus is also absent from the HRA. The European court of human rights, however, has acknowledged that protection of dignity and human freedom is "the very essence of the ECHR" and that protecting dignity is a matter of civilisation (SW v UK 1995). Human dignity has therefore emerged as an entirely judge-made concept with an uncertain normative basis and definition, generally located somewhere between the prohibition of torture and inhuman or degrading treatment (under article 3, ECHR) and the right to privacy (Article 8, ECHR).Dupre 2011
The Charter of Fundamental Rights of The European Union does place dignity at the heart of human rights stating that: ‘Human dignity is inviolable. It must be respected and protected’. It goes on to make particular reference to older people who have ‘a right to lead a life in dignity and independence and to participate in social and cultural life,’ (article 25) and workers: ‘Every worker has the right to working conditions which respect his or her health, safety and dignity.’ The UK did not adopt the Charter but judges are guided by it in cases relating to dignity (Dupre 2011).
The government established an independent Commission on a Bill of Rights on 18 March 2011. The Commission investigated the creation of a UK Bill of Rights to incorporate and build on all our obligations under the ECHR, to ensure that these rights continue to be enshrined in UK law, and protect and extend our liberties. The members of the Commission have, however, failed to reach agreement, meaning that progress on legislation to reform human rights is not likely to be made before the next general election.
The government started the Dignity in Care campaign in 2006 in response to negative media reports about how people were treated in health and social care services. The campaign has continued and gained momentum but the media reports of poor quality care and abuse have regrettably continued. The Department of Health’s (DH) corporate plan continues to ‘focus on getting quality, safety and dignity right every time in care services’.
The HRA and the Mental Capacity Act (MCA) provide opportunities for people using services and their carers and advocates to challenge a paternalistic culture where professionals decide what is best for the people in their care.
One crucial element of ensuring people are treated with dignity is for providers to understand the significance of human rights legislation. The legal framework of human rights law requires that health and social care workers, alongside other providers of public services, respect the dignity of people using services.
The ethics and values that underpin good practice in social care, such as autonomy, privacy and dignity, are at the core of human rights legislation. There are ongoing tensions between adherence to these values and the need to protect people from abuse, neglect and harm. For example, someone with dementia may want to do something that presents a risk to themselves or others, and in such a case workers would need to consider whether this decision has been made with capacity. If so, then they should strive to find a way of ensuring the person’s safety while respecting their right to choose what they want to do. If the person may lack capacity, they should be assessed according to the MCA.
Human rights cannot be embedded in care services solely through people taking individual legal action. The government takes responsibility for the enforcement of standards through guidance, inspection and regulation. In addition, organisations and individuals that provide care and treatment need to understand human rights principles, accept challenges to the traditional way of doing things and adapt their practices in response.
Adherence to human rights and equalities legislation should be reflected in policy and in practice. The way that day-to-day support is offered, for example, support with personal hygiene, eating and the discussion of confidential information with other people, may be challenged by people using services and their advocates. This does not mean that every assertion of human rights must be complied with. Health and social care workers have a number of other legal responsibilities imposed on them, for instance through health and safety laws, under the Data Protection Act (DPA) 1998 or through their contracts of employment.
Some of these requirements – as well as targets and demands imposed by organisations – may appear to conflict with human rights, equality and dignity. What is often required is a careful consideration of the human rights issues involved, which need to be weighed against the other duties imposed on those providing services. It may be reasonable to infringe a person’s human rights if the action concerned is necessary, legitimate and proportionate.