Dignity in care
Stand up for dignity - Legislation - Brief summary of key legislation
The Human Rights Act 1998 (HRA)Open
The HRA came into force on 2 October 2000. It enables individuals in the United Kingdom to enforce - in British courts - 16 of the fundamental rights and freedoms contained in the European Convention on Human Rights (ECHR). This makes Parliament and public bodies more accountable to UK citizens through the courts. The fundamental rights include rights which impact directly on service provision in the health and social care sector, such as the right to life, the right not to be subjected to inhuman or degrading treatment, and the right to family life.
The HRA builds on the mechanisms in the ECHR which recognise that a balance has to be reached between rights and responsibilities. Not all rights are absolute and frequently practitioners are required to balance competing rights.
Anti-discrimination legislation (sometimes known as equalities legislation) is designed to eliminate unjustifiable discrimination on legally specific grounds. It is constantly evolving, as society recognises new areas of inequality, and over the last 30 years a number of laws have been passed in response to changing public perceptions and the development of human rights law. The scope of the legislation is set out below. ('Regulations' rather than 'Acts' denote that they were passed as secondary (delegated) legislation.)
Statute Scope Sex Discrimination Act 1975
- prohibits discrimination on the basis of sex or marital status
- applies equally to discrimination against men and women
- also prohibits discrimination against a person on the basis of gender reassignment
Race Relations Act 1976
- prohibits discrimination on the basis of race, colour, nationality (including citizenship) national or ethnic origin
Disability Discrimination Acts 1995 and 2005
- prohibits discrimination against a disabled person - i.e. someone who has a disability as defined in Section 1 and Schedule 1 of the DDA
- from December 2006 all public bodies have a duty to promote a duty disability equality
The Race Relations (Amendment) Act 2000
- places a duty on public bodies in carrying out their functions to have due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity and good relations between persons of different racial groups.
Employment Equality (Sexual Orientation) Regulations 2003
- prohibits discrimination in employment on grounds of sexual orientation
- the definition covers lesbians and gay men, heterosexuals and bisexuals
- can include discrimination based on perception of a person's sexual orientation or association with individuals of a particular sexual orientation
Employment Equality (Religion or Belief) Regulations 2003
- prohibits discrimination in employment on the grounds of religion or belief
- no definition of religion or belief although the explanatory note to the regulations states that 'courts and tribunals may consider a number of factors when deciding what is a 'religion or belief' (e.g. collective worship, clear belief system, profound belief affecting way of life or view of the world).
The Employment Equality (Age) Regulations 2006
- prohibits discrimination in employment on grounds of age for those of working age
- it is irrelevant whether the discrimination is because you are young or old
Anti-discrimination and public bodies
Originally, protection against unjustifiable discrimination was provided to individual victims. More recently, public bodies (for instance, central or local government, state schools, health trusts and emergency services) have been given strategic duties to eliminate unlawful discrimination. The Race Relations (Amendment) Act 2000, for example, extends the original 1976 Act by placing a duty on public bodies to promote racial equality as well as eliminate discrimination. The Equality Act 2006 amended the Sex Discrimination Act 1975 in a similar way. Public bodies must publish race, disability and gender equality schemes, which are their action plans for implementing their statutory duties.
Anti-discrimination in care
Anti-discriminatory practice is fundamental to the ethical basis of care provision, and equalities legislation is critical to the protection of peoples' dignity. It imposes particular responsibilities on public authorities and service providers to avoid stereotyping and to respect peoples' diverse needs and cultural diversity. Providers of health and social care also have equivalent responsibilities to their employees.
The legislation is designed to promote the dignity of citizens by ensuring that they are treated with respect. Together, these laws and regulations help to:
- prevent direct discrimination on the legally prohibited grounds
- prevent indirect discrimination unless it can be justified
Direct discrimination occurs when someone is treated less favourably than someone else in similar circumstances on the grounds of their gender, religion, race, disability or age and the treatment was detrimental.
Indirect discrimination occurs when a condition or requirement is applied equally to everyone but in practice the proportion of one race or gender who can comply is considerably smaller than other groups and an employee is unable to comply because of their race or gender and the employer cannot show the condition or requirement is objectively justifiable.
For more details see the website of the Equality and Human Rights Commission (EHRC). This is a non-departmental public body (accountable for its public funds, but independent of government) which oversees equality and human rights law and practice. It has taken over the functions of the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission, as well as oversight of the workings of the Human Rights Act 1998.
Mental health and mental capacity legislation
Mental Capacity Act 2005 (MCA)Open
The MCA has been in force since 2007 and applies to England and Wales. The primary purpose of the MCA is to promote and safeguard decision-making within a legal framework. It does this in two ways:
- by empowering people to make decisions for themselves wherever possible, and by protecting people who lack capacity by providing a flexible framework that places individuals at the heart of the decision-making process
- by allowing people to plan ahead for a time in the future when they might lack the capacity, for any number of reasons, to make decisions for themselves.
The Act is underpinned by five key principles
Principle 1: A presumption of capacity - every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise. This means that you cannot assume that someone cannot make a decision for themselves just because they have a particular medical condition or disability.
Principle 2: Individuals being supported to make their own decisions - a person must be given all practicable help before anyone treats them as not being able to make their own decisions. This means you should make every effort to encourage and support people to make the decision for themselves. If lack of capacity is established, it is still important that you involve the person as far as possible in making decisions.
Principle 3: Unwise decisions - people have the right to make decisions that others might regard as unwise or eccentric. You cannot treat someone as lacking capacity for this reason. Everyone has their own values, beliefs and preferences which may not be the same as those of other people.
Principle 4: Best interests - anything done for or on behalf of a person who lacks mental capacity must be done in their best interests.
Principle 5: Less restrictive option - someone making a decision or acting on behalf of a person who lacks capacity must consider whether it is possible to decide or act in a way that would interfere less with the person's rights and freedoms of action, or whether there is a need to decide or act at all. Any intervention should be weighed up in the particular circumstances of the case.
The new roles, bodies and powers supporting the MCA
- Attorneys appointed under Lasting Powers of Attorney (LPAs) - the Act introduces a new form of Power of Attorney which allows people over the age of 18 to formally appoint one or more people to look after their health, welfare and/or financial decisions, if at some time in the future they lack capacity to make those decisions for themselves.
- Court of Protection and Deputies - the MCA created a new court and a new public official to protect people who lack capacity and to supervise those making decisions on their behalf. The Court is able to appoint a Deputy, for example, because a person has an ongoing lack of capacity. The Court will tailor the powers of the deputy according to the circumstances of the individual.
- The Public Guardian - the role of the Public Guardian is to protect people who lack capacity from abuse. The Public Guardian is supported by the Office of the Public Guardian (OPG). The OPG maintains a register of LPAs and EPAs. It also maintains a register of the Court-appointed Deputies and is responsible for supervising them.
- Independent mental capacity advocate (IMCA) - IMCAs are a statutory safeguard for people who lack capacity to make some important decisions. This includes decisions about where the person lives and serious medical treatment when the person does not have family of friends who can represent them. IMCAs can also represent individuals who are the focus of adult protection proceedings. The Deprivation of Liberty Safeguards introduced further roles for IMCAs.
- Advance decisions to refuse treatment - the Act creates statutory rules with clear safeguards so that people may make a decision in advance to refuse treatment if they should lack capacity in the future.
- A criminal offence - the Act introduces a new criminal offence of ill treatment or wilful neglect of a person who lacks capacity.
Code of Practice
The Code explains how the MCA works on a day-to-day basis and provides guidance to those working with people who may lack capacity. The Code explains the key features of the MCA in more detail, as well as some of the practical steps that people using and interpreting the law need to take into consideration. If you work with people who lack capacity and you are a professional and/or you are paid for the work you do then you have a legal duty to have regard to the Code. It is also relevant to unpaid carers who will be helped and guided by it.
- Full text of the Act can be located on the Office of Public Sector Information (OPSI) website.
- The Code of Practice is available from the Office of the Public Guardian website.
- For further information on the Mental Capacity Act visit SCIE's Independent Mental Capacity Advocate (IMCA) resource. Here you will be able to access a range of guidance materials, training resources and links to further support the MCA's implementation, including SCIE's At a glance guide to the Act.
Deprivation of Liberty SafeguardsOpen
The Mental Health Act 2007 amended the MCA to respond to what has been known as the 'Bournewood gap' (see box). This refers to the lack of a procedure to challenge the deprivation of liberty of a person resident in a hospital or care home who lacks capacity to consent to that deprivation.
Mr L and Bournewood Hospital
Mr L, a 49-year-old man with learning difficulties and autism, was detained under common law powers as an informal patient in Bournewood Hospital for a period during 1997, on the grounds that he required treatment for a mental disorder. He did not have capacity to consent to or to refuse admission and treatment. In 2004 the European Court of Human Rights held that Mr L's detention under common law was incompatible with Article 5 of the Human Rights Act (which is concerned with the right to liberty), because it was arbitrary and lacked appropriate safeguards. The European Court ruled that judicial review - which was the only way that Mr L had been able to challenge his detention at Bournewood - did not provide the kind of rigorous challenge that was required by human rights provision. [HL v United Kingdom (2004) ECHR]
The result of the Bournewood case meant that compliance with the European Convention on Human Rights required the process of detention in such circumstances to be formalised. It needed to be clear, for instance, who could propose deprivation of liberty for people like Mr L and for what purpose. There needed to be procedures for review of the detention and formal mechanisms by which detention could be challenged.
The Mental Health Act 2007 introduced the 'Deprivation of Liberty' or 'Bournewood' safeguards. These protect against illegitimate deprivation of liberty for people who do not have the capacity to consent to arrangements made for their care that would deprive them of liberty. Deprivation of liberty is to be avoided wherever possible and is only authorised if it is identified by independent assessment as a necessary and proportionate course of action to protect the person from harm. The MCA principles of supporting a person to make a decision when possible, and acting at all times in the person's best interests and in the least restrictive manner, apply to all decision-making in operating these safeguards.
The Mental Health Act 2007Open
The Mental Health Act 2007 came into force in November 2008. The Act primarily amends the Mental Health Act 1983 and is largely concerned with the circumstances in which a person with a mental disorder can be detained for treatment for that disorder without his or her consent. It also sets out the processes that must be followed and the safeguards for patients, to ensure that they are not inappropriately detained or treated without their consent. The main purpose of the legislation is to ensure that people with serious mental disorders which threaten their health or safety or the safety of the public can be treated irrespective of their consent where it is necessary to prevent them from harming themselves or others.
The main changes to the 1983 Act made by the 2007 Act are:
- definition of mental disorder: it changes the way the 1983 Act defines mental disorder, so that a single definition applies throughout the Act, and abolishes references to categories of disorder
- criteria for detention: it introduces a new appropriate medical treatment test which applies to all the longer-term powers of detention. As a result, it is not be possible for patients to be compulsorily detained, or their detention continued, unless appropriate medical treatment and all other circumstances of the case is available to that patient. These criteria abolished the treatability test
- professional roles: it broadens the group of practitioners who can take on the functions currently performed by the approved social worker (ASW) and responsible medical officer (RMO)
- nearest relative: it gives to patients the right to make an application to the county court to displace their nearest relative and enables county courts to displace a nearest relative who it thinks is not suitable to act as such.
- Supervised Community Treatment (SCT): it introduces SCT for patients following a period of detention in hospital. SCT will allow certain patients with a mental disorder to be discharged from detention subject to the possibility of recall to hospital if necessary. This is particularly intended to help avoid situations in which some patients leave hospital and do not continue with their treatment, with the result that their health deteriorates and they require detention again - this is sometimes referred to as the revolving door.
- electro-convulsive therapy: it introduces new safeguards for patients
- Tribunal: it reduces the periods after which hospital managers must refer certain patients' cases to the Tribunal if they do not apply themselves. It introduces an order-making power to make further reductions in due course.
- independent mental health advocacy: it places a duty on the appropriate national authority to make arrangements for help to be provided by independent mental health advocates.
- age-appropriate services: it requires hospital managers to ensure that patients aged under 18 admitted to hospital for mental disorder are accommodated in an environment that is suitable for their age (subject to their needs).
National Mental Health Development Unit (NMHDU)Open
The National Mental Health Development Unit (NMHDU) was launched in April 2009, and consists of a small central team and a range of programmes funded by both the Department of Health and the NHS to provide national support for implementing mental health policy by advising on national and international best practice to improve mental health and mental health services.
MHDU does this by commissioning or providing:
- specialist expertise in priority areas of policy and delivery
- effective knowledge transfer on research, evidence and good practice
- translation of national policies into practical deliverables that achieve outcomes
- coordination of national activity to help regional and local implementation
Further information can be accessed on the National Mental Health Development Unit (NMHDU) website.
Legislation protecting vulnerable people from abuse
One important part of the drive to promote respect for and dignity of people using services is the recognition of their particular vulnerability to abuse. Part of the Dignity in Care initiative is zero tolerance of abuse. The need to safeguard service users from some of the risks they face has led to a range of statutory developments.
The Sexual Offences Act 2003 (SOA)Open
This Act modernised the law on sexual offences. In the past there had been difficulties in bringing prosecutions against individuals who committed sexual offences against people with mental disorders. Under the Act, any sexual activity between a care worker and a person with a mental disorder is prohibited while that relationship of care continues. A 'relationship of care' exists where one person has a mental disorder and another person provides or may provide face-to-face care, where that care arises from the mental disorder. It applies to people working both on a paid and an unpaid basis and includes doctors, nurses, care workers in homes, workers providing services in clinics or hospital, volunteers and so on. The offences in the Act relating to care workers apply whether or not the victim appears to consent, and whether or not they have the legal capacity to consent.
Examples include the intentional sexual touching by a care worker of a person to whom they provide care, who does not have the capacity to consent to that touching and a care worker causing or persuading someone with a mental disorder to engage in any sexual activity. Note that intentionality is important here. If a care worker follows the normal procedures for bathing and supporting someone to go to the toilet. this would be strong evidence that the behaviour was not intended to be sexual. In addition, the Act is not intended to interfere with the right of people with a mental disorder who have the capacity to consent to engage in sexual activity.
The SOA also attempts to make the prosecution of rape easier by clarifying the meaning of consent. Section 74 of the Act provides that someone consents to a sexual act if, and only if, he or she agrees by choice and has the freedom and capacity to make that choice.
Safeguarding Vulnerable Groups Act 2006 (SVG)Open
This Act aims to help avoid harm, or risk of harm, to children and vulnerable adults by preventing people who are deemed unsuitable to work with children and vulnerable adults from gaining access to them through their work. The Independent Safeguarding Authority has been established as a result of this act and has a function to run the Vetting and Barring Scheme.
The Independent Safeguarding Authority (ISA) will assess every person who wants to work or volunteer with children or vulnerable adults by working closely with the Criminal Records Bureau (CRB).
The ISA now covers the functions previously under:
- the Protection of Vulnerable Adults (PoVA) list
- the Protection of Children Act (PoCA) list
- list 99 (a list of people considered unsuitable for work with children, held by the Department for Education)
The Act allows for more effective checking of staff and people receiving direct payments or individual budgets will also be able to access the scheme to make checks.
Information legislation is overseen by the Information Commissioner's Office, an independent official body whose role is to promote access to official information and to protect personal information. All public and private organisations are legally obliged to protect any personal information they hold. Public bodies are also obliged to provide public access to official information. Specific obligations are set out in two important statutes.
The Data Protection Act 1998 (DPA)Open
Information held by public bodies is governed by the requirements of the Data Protection Act 1998 which requires data controllers who process personal information to comply with a range of data protection principles. Enhancing the dignity of people using services demands that practitioners pay attention to confidentiality. There are some limits on confidentiality and these apply where there is a risk of harm to other people.
Data controllers are people, including organisations, who decide how and why personal data is processed. 'Personal data' refers to information relating to an identified or identifiable living individual which is processed automatically (including information processed on a computer) or recorded manually as part of a filing system or part of an accessible record. This will include records such as social services files. Processing covers anything done in relation to such data, including collecting it, holding it, disclosing it and destroying it. The eight data protection principles are key to understanding the Act:
Data protection principles Comment Fairly and lawfully processed Lawfully refers to the requirements found in the common law of confidentiality, administrative law (the processing must not be 'ultra vires', i.e., outside the authority of the organisation or contrary to statutory provisions) and with the provision of Article 8 of the European Convention on Human Rights. Processed for limited purposes Information is held for a purpose. You should be clear what that purpose is and the information should only be used for that purpose. Adequate, relevant, and not excessive Only necessary information should be held. Accurate You have a responsibility to ensure that the information is accurate and you should have systems in place for checking the accuracy, for instance confirming details with the person concerned. Not kept longer than necessary Once the reason for holding the information is past then the information should be destroyed. There should be a system in place for checking regularly the continuing relevance of information held. Processed in accordance with the data subject's rights These are set out in Schedules 2 & 3 of the Act Secure Non-authorised people should not be able to get access to the information. You should be clear who has authority to access information and who does not. Not transferred to other countries without adequate protection Information should not automatically be sent to other countries if the person concerned moves abroad. The new country may not have similar standards of protection of information.
For general information on the Data Protection Act (1998) see the Ministry of Justice guide to Data sharing and protection which sets out principles which safeguard confidential information for citizens.
For Department of Health guidance on data protection, see [web link to Data Protection (Subject Access Modification) (Social Work) Order 2000)]
The Freedom of Information Act 2000 (FoIA)Open
This provides statutory rights for members of the public requesting information. Under the Act any member of the public is able to apply for access to information (unless that information is covered by exemptions) held by a wide range of public bodies, including local authorities and hospitals. The FoIA imposes a duty on public bodies to adopt schemes for the publication of information which must be approved by the Information Commissioner.
Information legislation protects the human rights of people using services by:
- ensuring that information held about someone is held only with a person's consent and is held securely
- ensuring that personal information is only shared on a 'need to know' basis
- enabling service users in certain circumstances to have access to the information that is held about them.
Further advice on handling personal information can be found on the Information Commissioner's website