Dignity in care

Stand up for dignity - Legislation - Relevant articles in the Convention of the Human Rights Act

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. Those highlighted here are of particular relevance: click on them for further explanation, practice points and practice examples.

• Article 2: establishes a right to lifeOpen

  Individuals have the right to have their life protected by law. There are only certain very limited circumstances where it is acceptable for the state to take away someone's life, and in certain circumstances the state has positive duties to protect life. One example is where someone is a prosecution witness whose life is under threat (see box).

  Witness for the prosecution

  Mr Van Colle, who was to have been a witness against a former employee charged with theft, was shot dead by the accused before the trial. Van Colle had received threats against his life, and the Court of Appeal ruled that the state had breached Article 2 in failing to take the measures within the scope of their powers that, judged reasonably, might have been expected to protect their witness's life. The court made it clear that, where it was established that the state authorities knew or ought to have known of the existence of a real and immediate risk to the life of an individual as a result of the criminal acts of a third party, the state had a positive obligation under Article 2 to take preventive, operational measures to protect that individual. [Van Colle v Chief Constable for Hertfordshire (2007)].

  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 life 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 who was killed by an abusive relative, or a failure to investigate any such death properly
  • failure to assess and treat someone in care who was at risk of suicide
  • a decision to move frail or vulnerable people from a residential care home resulting in illness or death
  • a day centre user dying as a result of the administration 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

  Practice points

  Organisations should have:

  • regimes which ensure that the health and safety of people, such as patients, residents or users of day care services, are prioritised
  • regular risk assessments of the premises and of routine practices so that all risks are identified and managed
  • strategies for identifying, minimising and managing the risks of transfers of people from one residential home to another location
  • appropriate management to check that health and safety requirements are adhered to by all staff
  • training on health and safety so that all staff understand the importance of these procedures.

  Practice example

  Miriam is very frail and unable to feed herself while in hospital. The catering staff place her meal out of reach, and the nursing staff neglect to assist her with eating. As a result the catering staff remove untouched food and Miriam's lack of food intake goes unnoticed. Food and drink are basic requirements of life, and failure to have a system in place to provide help with eating or drinking where required could potentially be a breach of Article 2. Miriam should alert a member of staff and later on, she or her family might wish to make a complaint to the hospital, through the Patient Advice and Liaison Service (England) or Hospital Complaints Service (Wales).

  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 to new or refurbished homes, and transfers should be postponed until a time when any risk is minimised. For instance, moving vulnerable people during the winter months may increase the risk of fatal illness.

  Further information

  For more details of human rights implications, see the Age Concern Information sheet.

• Article 3: is the right not to be subjected to torture, inhuman or degrading treatmentOpen

  Inhuman and degrading treatment can arise as a result of failure to assess an individual's need for services and a failure to provide necessary services in a timely manner and at an appropriate level. Article 3 could be relevant to failures by public services to protect vulnerable adults from abuse or neglect. In social or healthcare settings practices such as tying residents of a care home into chairs would almost certainly be inhuman, and it could be argued that failure to prevent and treat bedsores could be a breach of Article 3.

  Under the National Health Service and Community Care Act 1990, local authorities have a duty to provide information, a duty to assess (section 47) and a duty to promote equality under the Race Relations Amendment Act 2000.

  The threshold for breach of the Article is high, and not all treatment that we might consider being undignified would breach the Article. So, for instance, neither of the following was considered to breach Article 3:

  • the restraint of a prisoner, including the use of handcuffs, during medical treatment and the presence of security officers during medical consultations and treatments, as any interference was proportionate to the risk the prisoner posed [R. (on the application of Botmeh) v GSL UK Ltd (2007)].
  • the strip-searching of the mother and half-brother of a prisoner awaiting trial for drugs offences, given the suspicions with regard to the prisoner and the fact that there was an endemic drugs problem in the prison. However, it was noted that the procedures were lax and had been conducted with a regrettable lack of courtesy. Also, the strip-searching was found to be a breach of Article 8 rights, because the interference was not proportionate to the legitimate aim [Wainwright v United Kingdom (2006)].

  Despite the high threshold it is important to understand that its purpose is to ensure that everyone is treated with dignity, and the approach of a good service ought to be aimed at preserving dignity, rather than on what level of indignity the law is prepared to tolerate. The focus should be on the dignity of people using services. Dignity means treating each person as an individual and with the same respect as we would want for ourselves or members of our own family.

  Further information

  The Mental Capacity Act 2005 offers another route to challenge wilful neglect and mistreatment because it made these criminal offences when looking after a person who lacks mental capacity. For details of a set of useful information booklets for the public and for people working in health and social care see: Ministry of Justice guide to information booklets on the Mental Capacity Act.

  Practice points

  • Local authorities have a responsibility to ensure that any care home in which they place residents adheres to local safeguarding procedures. Practitioners, families and friends as well as residents should be aware of how to take up concerns about inhuman and degrading treatment.
  • Every local authority and healthcare organisation should have policies and procedures in place to protect vulnerable adults from abuse or neglect and to provide redress should abuse occur. Relevant to this would be a robust complaints procedure and a whistleblowing procedure.
  • Staff's rights to whistleblowing may be important to remember when they feel that they are witnessing inhuman or degrading treatment. (See whistleblowing)
  • Local policies about safeguarding should give details of local contacts.

  Practice example

  In a decision relevant to social and healthcare, the Court of Appeal ruled that the denial of state benefits to late applicants for asylum was incompatible with Article 3 [CA 18 March 2003]. Most degradations occurring in the realm of health and social services, however, arise from a lack of thought rather than malice or intended inhumanity.

• Article 5: provides a right to liberty and securityOpen

  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.

  Tribunals and courts that hear challenges to detention must conform to a high standard of procedural protection. When three prisoners challenged the operation of the parole board, the court found that the structure of the parole board and the way that it was controlled by the Secretary of State were such that it did not enjoy the independence from the executive necessary for a court under Article 5. [R. (on the application of Brooke) v Parole Board (2007)]

  The significance of Article 5 was illustrated by the Bournewood case (see [link to: Mental Health Act 2007 in Section 2]). The European Court of Human Rights held that the routine detention of incapacitated adults in the UK was in breach of their Article 5 rights. In its judgment the European Court said that:

  the key factor in the present case [is] that the healthcare professionals treating and managing the applicant exercised complete and effective control over his care and movements.

  and

  the applicant was under continuous supervision and control and was not free to leave.

  As a result, the government introduced the Deprivation of Liberty safeguards (under the Mental Health Act 2007).

  Understanding the Deprivation of Liberty safeguards

  The managers of care homes or hospitals who identify that a person who lacks capacity is being (or risks being) deprived of their liberty, must apply to a 'supervisory body' for authorisation of the deprivation of liberty, unless it would be appropriate to detain the person under the Mental Health Act 1983 or 2007.

  When a person in this position is staying in a care home the supervisory body will be the relevant local authority. Where the person is in a hospital it will be the relevant primary care trust, or, in Wales, the National Assembly for Wales. In an emergency, the care home or hospital management can itself provide an urgent authorisation supported by written reasons for a maximum of seven days.

  It may be difficult for care homes or hospitals to recognise that someone is being deprived of their liberty. Organisations must ensure that they have systems in place to consider whether care plans deprive an 'incapacitated' adult of his or her liberty. Staff must keep these cases under review and ask the question about deprivation of liberty explicitly whenever a change is made to the care plan. This should be recorded in the person's health and care record.

  Indications that liberty has been deprived could include sedating a patient who is resisting admission, any decision that the person would be prevented from leaving if they made a meaningful attempt to do so, and refusals of requests by carers for the person to be discharged to their care.

  The code of Practice to the Deprivation of Liberty safeguards should be easily accessible to staff in care homes and hospitals, and staff should receive appropriate training.

  The Code of Practice for the Deprivation of Liberty Safeguards is an essential read for practitioners working with people who may lack capacity in care homes and hospitals.

  Further information

  For more general information see Human Rights in Healthcare - a framework for local action, Department of Health, March 2007.

  Practice example

  Mrs Bailey made arrangements to enter a care home when she could no longer walk and needed a lot of help looking after herself. Over the past months she has become increasingly confused and has been diagnosed with vascular dementia. She often tries to leave the home to 'go to school' and staff persuade her to come back. This seems to be the sensible thing to do, but at a care review, her key worker raises with the home's manager the question of their right to do this: might this be construed as depriving Mrs Bailey of her liberty? They decide to contact the local office of adult services and ask to have the legal position clarified.

• Article 6: ensures the right to a fair trial and to innocence until proved guiltyOpen

  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. Cases have made it clear that 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 which deprive people of their rights should comply with the Article. The Charity Commission has produced principles for fair decision-making. These set out, for example, that decisions and decision-making processes should be open, fair, timely and impartial, that decisions should be communicated in a way that will not overawe or confuse the recipient, that the decision is, and can be seen to be, free from personal prejudice or bias and making sure that case files or other records demonstrate a clear trail of the decision-making process and never expressing biased or unsubstantiated opinions.

  Further information

  Read more on the Charity Commission's guidelines

  Practice example

  Mrs Turner says Mr Brown touched her inappropriately and, as part of the safeguarding adults procedure, the matter is being investigated and the police have been called. The situation is unclear, because Mrs Turner has dementia and has accused other men of having touched her. Allegations, in the past, have not been substantiated. On the other hand, although Mr Brown denies having touched Mrs Turner, he has been known to display inappropriate sexual behaviour. Safeguarding procedures must ensure that Mr Brown is not labelled as a sexual offender and that he has access to independent legal advice.

• Article 8: provides the right to respect for private and family lifeOpen

  All rights of citizenship are relevant to private and family life under Article 8. A few examples of its wide range of influence include:

  • the right to respect for one's house and belongings
  • the right to choice in personal relationships
  • the right to confidentiality of personal data

  Article 8 limits the state's interference with individual and family autonomy except in certain circumstances, such as taking a child into care or replacing the 'nearest relative' under mental health law. However, normal social and healthcare practices relate to an individual's health and private life, and practitioners need to have a regard for the right to respect in many different areas. Below are just a few examples.

  Article 8 and respect for the person

  If the rules of somewhere such as a group or residential home prevent residents from forming and maintaining friendships or personal relationships with other people (such as partners, parents and children) they may be in breach of Article 8. Failure to provide community support which leads to someone being admitted to hospital under a section of the Mental Health Act 1983 or 2007 may well be a breach of Article 8. Indeed, in future, courts may decide that there are positive obligations on the government to enable people with learning disabilities or mental health problems to take part in the life of their local community.

  Another aspect of respect for the individual arises with regard to assessments for social care services. Local authorities and other public bodies should ensure that assessments are carried out without avoidable delay, and that individuals are provided promptly with the social care they have been assessed to need (as required under the NHS and Community Care Act 1990). It is not good enough to say, for example, that because a person is self funding that they need not be assessed under.

  A person's right to live in the home of their choice is an obvious example of a right protected by Article 8, and there has been important litigation on this issue. In the case of Mrs Coughlin, the health authority made a decision to close the home in which she had been promised a 'home for life'. The Judicial Review ruled in favour of Mrs Coughlin as the commitment made that the home would be permanent had not been properly taken into account, and there had been no demonstration of public interest in the closure.

  Not all commitments made to a service user will lead to a successful judicial review, however. In the similar case of Mr Lindley, the local authority's knowledge of Mr Lindley's needs had developed since it made the assurances that he could move to supported housing and the court found that it was right for it to have changed its conclusions as to how his needs were to be met. The court found that he had not relied on the assurances made to him, to his detriment.

  Further, even if there was an enforceable expectation, it was contrary to Mr Lindley's welfare needs for the local authority to be required to move him to a new care facility. [R. (on the application of Lindley) v Tameside MBC (2006)]

  Article 8 and personal autonomy

  Article 8 also protects personal autonomy to a greater extent than care workers might expect. It means staff of public bodies, such as nurses or care assistants, must respect individual decisions unless interventions are legally sanctioned and required. This would include, for instance, the right of a person to behave against medical advice. This may be counter-intuitive to health and social care workers, because that behaviour might lead to a fatal outcome.

  Article 8 and privacy

  This Article also has an impact on in the ways in which 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 and proportionate 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 and the common law duty of confidentiality and a person's rights to privacy.

  Further information

  The general information on the Data Protection Act (1998) sets out principles which safeguard confidential information for citizens.

  For healthcare: Patient confidentiality and Access to Health Records

  For social services: Data Protection Act 1998 - guidance for social services

  Department of Health guidance on rights and risks is available to download.

  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. (For more on these possible conflicts, see next section summary of further legislation that supports Dignity in Care .) What should be kept in mind for now is that this Article is qualified and not absolute. What this means is that the right can be interfered with, but only where that interference is necessary, legitimate and proportionate.

  Particular difficulties may arise when a person lacks the capacity to make decisions or consent to care or treatment.

  Practice examples

  Mrs Jones worries that she has to disclose information about her medical condition to her community nurse in circumstances where other people can overhear. This is possibly in breach of her Article 8 rights to privacy. However, there is a notice in the waiting area of the health centre saying that patients are welcome to talk to the practice manager if they have any comments about the service. Mrs Jones does this and the health centre makes better arrangements about privacy.

  Miss Sharma reports her distress to the Care Quality Commission when she has observed that care workers often shout across the corridor to one another details of the continence status of residents in which her aunt lives. She feels that this does not show respect for the residents' privacy and dignity. The inspector takes this up with the home manager and the matter is resolved. Practices in care homes concerning matters such as this raise particular issues about the respect for human rights. Age Concern, with a number of other organisations, has produced an excellent leaflet, Behind Closed Doors: Using the toilet in private (PDF file), which provides useful information on best practice.

  Article 8 and mental capacity

  The Mental Capacity Act 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. Two particular aspects are that of acting in the best interests of the individual concerned, and that of restraint.

  See SCIE Report 26: Restraint in care homes for older people: a review of selected literature.

  Acting in a person's best interests

  The Mental Capacity Act 2005 (sections 1-4) supports the common law principle that any decision or action taken on behalf of a person who lacks capacity to make this decision or consent must be in his or her best interests. What actually is in someone's best interests depends on the circumstances of each individual case. Interventions, such as medical treatment, will be lawful where there is both a necessity to act, and any action is in the best interests of the incapacitated adult as long as

  • you abide by the law and Code of Practice, respecting people's wishes and any advance decisions
  • any action is proportionate
  • when you have a choice of actions you choose the alternative which is the least restrictive of the person's freedom.

  The MCA's Code of Practice (http://www.justice.gov.uk/guidance/mca-code-of-practice.htm) is a key document for practitioners, who must have regard to it. It also applies to people who have been granted lasting power of attorney or who have been made court-appointed deputies.

  Restraint

  In the rare circumstances that restraint needs to be used, staff will be protected from liability (for example, criminal charges) if certain conditions are met. There are specific rules on the use of restraint, both verbal and physical, and the restriction of liberty, and these are outlined in Section 6 of the MCA Code of Practice, which notes that restraint should only be used as a last resort, or in exceptional circumstances.

  If restraint is used, staff must reasonably believe:

  • the person lacks capacity to consent to the act in question
  • that it needs to be done in his or her best interests
  • that restraint is necessary to protect the person from harm
  • that it is a proportionate or reasonable response to the likelihood of the person suffering harm and the seriousness of that harm.

  Restraint can include physical restraint, locking a door and verbal warnings to stop someone going somewhere or doing something but cannot extend to depriving someone of their liberty. Staff must be trained in this area, and they must record when and why they have restrained a person.

  Restraint may also be used under common law (as distinct from the Mental Capacity Act 2005) in the rare circumstances where there is a risk that the person lacking capacity may harm someone else. Again, staff must make a record when and why they used restraint. The Code of Practice on Deprivation of Liberty Safeguards (PDF file) offers guidance relating to restraint.

  See SCIE Report 26: Restraint in care homes for older people: a review of selected literature.

  People using services, or other people on their behalf, can complain if they think restraint has been wrongly used. Frontline practitioners are advised to seek advice about the legal position of people who they think are possibly being detained without legal safeguards. whistleblowing under the Public Interest Disclosure Act 1998 is an option for staff who feel that their concerns are not being addressed.

  Further information

  Disclosures in the public interest: protections for workers who 'blow the whistle': guidance

  Practice example 1

  Samantha and Ben, who live in a group home for people with learning disabilities, start a sexual relationship. Samantha's social worker talks to her independently about this decision and about the risks. Ben's community nurse has a similar conversation with him. The practitioners ensure as far as possible that both have consented to the relationship and see their role as supportive. The rights of Samantha and Ben have been respected because the practitioners have worked with them to try to ensure that their best interests are considered but also that they have retained autonomy. The practitioners will record their discussions in the case records.

  Practice example 2

  Carla, who has lived in a supported housing project since leaving care, has put her health at risk by eating an excessive amount of cakes and biscuits. The project workers decide, as they owe her a duty of care, that they should restrict her spending money so that she cannot binge on sweet things. In this example, Carla's rights have been infringed. She has the capacity to make decisions; it is just that the staff think that what she is doing is not right for her. They may feel strongly that they are acting in her best interests, but they are overlooking her right to autonomy: her Article 8 rights mean that Carla has a right to her money and to make decisions about how to spend it. The project workers should tell Carla about why they are concerned, and put those concerns in writing; they should also ask for advice for themselves about the best way to progress, for example, from the local health promotion service.

• Article 10: provides the right to freedom of expressionOpen

  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.

  The Article 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.

  This Article can cause difficulties because different people have different levels of tolerance. One person may see it as a freedom to express him or herself by listening to loud rock music; another may find the noise intrusive.

  Practice points

  • Work alongside residents and their advocates to develop a policy on freedom of expression and keep the policy under review.
  • It is appropriate to allow people to display posters, for example, in their own room that may not be tolerated within communal areas.

  Practice example

  Some of the staff working in a group home are very upset by anti-abortion publicity material to which two of the home's residents subscribe. The atmosphere of the home is tense. Everyone can see that people have the right to self-expression in theory but it is hard for both groups to manage this in practice. There is no legal answer to this problem, but the manager is likely to have to exercise her skills at people management, and to provide opportunities to listen to everyone who is concerned. She might suggest that the residents make certain rules about what is best for communal areas of the home and what might be best kept in people's bedrooms.

• Article 14: prohibits discrimination in the 'enjoyment' of Convention rightsOpen

  This is not a freestanding article - it can only be claimed if the discrimination affects an area which falls under another article of the Convention.

  The grounds for discrimination are very broad; the article forbids discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Remember the important limit: it can only be invoked when another article of the Convention has been engaged. In effect, it piggybacks on the other articles of the Convention.

  There is much potential for litigation in areas where health and social care services are concerned. It is, for example, illegal to discriminate against adults with learning disabilities in connection with any of their Convention rights. This means, for example, that practitioners should work with others to examine the quality of provision of public services, including healthcare and housing, for people with learning disabilities and consider their ability to access these services.

  Practice points

  • Staff should be alert to possibilities of discrimination. They should not automatically limit people's experience, for example, because of their disability. Any limit on activities should be justified, and those limits kept under review.
  • Staff should receive training in how to avoid discrimination and know where to get advice. They should be aware of the services provided by the for Equality and Human Rights Commission.

  Practice example

  Daniel, a disabled person who also has a severe mental health problem, is told he is not going to receive support services which will enable him to remain in the community. He feels this may be because of his mental health problem. The refusal of support services, he argues, is in breach of his Article 8 rights. He additionally claims breach of Article 14. Daniel has the right to ask for an explanation and if he is not satisfied with this he can seek legal advice. The Equality and Human Rights Commission will provide advice if practitioners feel that they are not able to find an easy and independent source of legal expertise to assist in a position such as Daniel's.

Further information

For further discussion of these articles see the Ministry of Justice study guide (PDF file).

You can find the full text of the Convention rights included within the Human Rights Act.

Five training packs for frontline workers are available from the Department of Health.

There is very useful guidance to the Act in SCIE's e-learning law tools.

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