Dignity in care

Stand up for dignity - Legislation - Dignity in Care's relationship to human rights and equalities legislation

The government's Dignity in Care initiative highlights that 'High quality health and social care services should be delivered in a person-centred way that respects the dignity of the individual receiving them'. One crucial element of achieving dignity is for providers to understand the significance of human rights legislation.

The legal framework of human rights and anti-discrimination law requires that health and social care workers, alongside other providers of public services, respect the dignity of people using services. As the Department of Health points out in Human Rights in Healthcare - A Framework for Local Action 2007, a human rights ethos is an important way to improve services:

Quite simply we cannot hope to improve people's health and well-being 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. Human rights can provide a practical way of making the common sense principles that we have as a society a reality.

Human rights principles are very closely related to other principles of good professional practice that have underpinned public service provision for a long time. Human rights and health and social care practice share an ethical basis of concern with the autonomy, privacy and dignity of people using services. So, even before the vocabulary of human rights was developed, good practice in the delivery of social and healthcare recognised needs for privacy and dignity, and also recognised the tensions between these requirements and the need sometimes to protect people in vulnerable situations from harm.

However, the introduction of the Human Rights Act provided a real opportunity to look at traditional practices in social care and health services. It puts the focus on the person using services and so is different from a paternalistic culture where assumptions are made by professionals about what is best for the people in their care. Instead it gives us a way by which individuals or their advocates can articulate demands on services. A judge, His Honour Justice Munby, emphasised the importance of human dignity in a case that concerned health and safety regulations. He said:

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]

• Challenges to providers of careOpen

  One special feature of human rights requirements is that they may be enforced, or made to work, through legal action by people using services or their representatives. However, human rights cannot work solely through individual enforcement. The government takes responsibility for the enforcement of standards through guidance, inspection and regulation. In addition, organisations and individuals that deliver care and treatment need to understand human rights principles, accept challenges to the traditional way of doing things and adapt their practices in response. It is not only organisational policies or paperwork which must respond to positive participation in service delivery; everyday practices such as providing support with personal hygiene, eating and the discussion of confidential information with other people may be challenged by people using services and their advocates and will require responses from frontline workers.

  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, through 'common law' duties of care, through legal requirements that personal information should be treated as confidential and processed in accordance with the principles of the Data Protection Act 1998 or through their contracts of employment, which may at times or in some circumstances appear to conflict with the necessity to respect

  Particular dilemmas may face staff when there is a conflict between their legal responsibility to protect someone and that person's human right to self-expression, for example, of their sexuality. Moreover, people work in organisations that impose a whole range of demands and targets on them and it can be hard to see the relevance of human rights to these targets, never mind their central importance. 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 provision. Depending on the nature of the right asserted the right should only be infringed if it is legitimate, necessary and proportionate to do so. The different types of rights understood by the Human Rights Act are explained in section adhering to human rights law.

• WhistleblowingOpen

  Dignity also requires providers of care to challenge practices in their own workplaces, to make it clear when peoples' rights are being infringed. In extreme circumstances workers may have to contact external agencies such as local authorities or regulators to advise on possible malpractice. While this is essential for the protection of people using services and organisations, it can be a very risky step for individuals to take.

  Some protection is given to employees who disclose malpractice, commonly described as whistleblowing, by the Public Interest Disclosure Act 1998. This Act gives protection to those acting in good faith and with reasonable suspicion that malpractice has, is, or may be, occurring and who disclose this to a manager or an employer. It protects employees from victimisation and dismissal. The Act is designed to ensure that organisations respond by addressing the message rather than the messenger and resist the temptation to cover up serious malpractice.

  Families and friends may also find it difficult to raise concerns, and of course, people who are dependent on services may be very reluctant for fear of making things worse. Helplines (see below) may be useful sources of advice and support for anyone concerned.

  Further information

  Further information and support in connection with whistleblowing are provided by the charity Public Concern at Work. See also Stand up for Dignity: Whistleblowing

  National helplines include: Action on Elder Abuse (tel 0808 808 8141);Voice (0845 122 8695). Others are run locally and details of them will be available from the local council.

• The legal mechanisms for enforcing human rightsOpen

  Generally, when someone has been the victim of a potential breach by a public body of their rights under the European Convention on Human Rights, the appropriate legal action will be judicial review of the public body's action by the High Court. Such cases usually have to be taken within one year of the action that is the subject of the complaint. When the court considers the human rights issue raised it will review the law to see if the public body had any choice about the action it took. It will try to interpret the legislative basis of the public body's action to see if it can be interpreted in a way which is compatible with Convention rights. If the legislation can be interpreted compatibly and the public body is found to have acted in breach then the court can remedy that breach using its usual powers.

  The Human Rights Act also gives the courts a power to grant damages for breach of Convention rights. However, the courts are reluctant to do this and where they have made an award, the levels of damages have been quite small.

  The greater political significance of the Human Rights Act lies in the actions the courts can take if the legislation cannot be interpreted compatibly. The courts' powers depend on the type of legislation that forms the basis of the public body's action. If the legislation was secondary legislation then the court may quash or disapply that legislation. However, if the breach arises out of primary legislation - an Act of Parliament - then the court cannot quash the legislation. This is because the Human Rights Act maintains the supremacy of Parliament, which must be recognised by the courts. Instead, what the courts can do is to make a declaration of incompatibility. Such a declaration will not make that Act invalid and the public body involved will not be acting unlawfully in applying the legislation. However, any declaration of incompatibility makes it clear to the government that there is a problem with the legislation and provides support for the victim in taking his or her challenge to the European Court of Human Rights in Strasbourg. This court hears cases brought against those states who are parties to the European Convention, and acts as a final decision-maker on allegations of non-compliance.

  The burden of proof

  One early example of a declaration of incompatibility arose in the case of Mr H. Under the Mental Health Act 1983 the burden of proof rested on the patient to show that he no longer suffered from a mental disorder that warranted his detention. The Act did not require a tribunal to discharge a patient who could not be shown to be suffering from a mental disorder warranting detention, and the courts found the lack of such a requirement amounted to unlawful detention and infringed a person's right to liberty. The court therefore declared sections 72 and 73 of the Mental Health Act 1983 incompatible with Article 5 of the Human Rights Act, which protects the right of liberty. The government acted quickly and reversed the burden of proof. [R. (on the application of H) v Mental Health Review Tribunal (2001)]

  There is another mechanism built into the Human Rights Act, which is designed to ensure that all new legislation takes the European Convention into account. A minister who is introducing a Bill into Parliament has to make a statement as to whether or not the Bill is compatible with Convention rights and to highlight those provisions of the Bill which are relevant. All Bills are scrutinised by the Joint Parliamentary Committee on Human Rights. This is a committee of both Houses of Parliament which has considerable expertise in human rights law and is able to make proposals as to how a Bill can be made more compatible with Convention rights. It also carries out inquiries into problematic areas such as human rights and terrorism, and human rights and vulnerable people.

• The legal mechanisms for enforcing equalities lawOpen

  Discrimination arising out of employment is dealt with by employment tribunals. The time limit for starting the case is normally three months from the date of the last discriminatory act.

  If the discrimination takes place outside the employment field (for instance in connection with the provision of care services), the case is brought in the county court. Proceedings have to be started within six months of the last act complained of, or eight months in the case of discrimination in education. The court can order damages to be paid, including compensation for distress to feelings, and an injunction requiring the discriminator to do or stop doing certain acts.

  To complain about discrimination, contact the Equality and Human Rights Commission for advice and support.

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