SCIE Practice guide 09: Dignity in care

Promoting dignity within the law: Summary of key legislation

The Human Rights Act 1998 (HRA)

The Human Rights Act 1998 (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 practitioners are frequently required to balance competing rights.

Further information

See Articles in the Convention of the Human Rights Act for an explanations of articles of the Act particularly relevant to health and social care workers, with practical examples.

See Adhering to human rights law for more on the balance of rights and responsibilities, with examples relating to health and social care.

The Human Rights Act 1998 can be found on the Office of Public Sector Information website.

The Ministry of Justice provides an excellent user-friendly Guide to the Human Rights Act which is available in the Human rights guidance section of their website.

Anti-discrimination legislation

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.)

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 service users’ dignity. It imposes particular responsibilities on public bodies and service providers to avoid stereotyping and to respect service users’ 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, marital status, 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.

Further information

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)

The MCA provides a statutory framework to protect and empower adults who may lack capacity (ability) to make all or some decisions about their lives. It also governs the way decisions can be made for an individual who lacks the capacity to make specific decisions at specific times.

Section 1 of the MCA sets out five principles to support decision-making either by or on behalf of a person who may lack capacity. In brief:

• There is 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.
• Individuals should be supported to make their own decisions.
• People have the right to make unwise decisions and making an unwise decision does not mean they lack capacity to make that decision.
• If someone lacks capacity then an act done or a decision made for them under the Act must be done in their best interests.
• Anything done for or on behalf of a person who lacks capacity should be the less restrictive option.

These principles promote the human rights of people who may lack capacity because they enshrine respect for individual autonomy and make it clear that we should always presume that a person has the capacity to make decisions unless it is established otherwise.

The government has published a Code of Practice to the Act, which provides guidance and information on how the Act will work on a day-to-day basis, for anyone who works with or cares for people who lack the capacity to make decisions, including family, friends and unpaid carers. Certain categories of people are legally required to ‘have regard to’ relevant guidance in the Code of Practice. That means they must be aware of the Code of Practice when acting or making decisions on behalf of someone who lacks capacity to make a decision for themselves, and they should be able to explain how they have had regard to the Code when acting or making decisions. Those categories include people acting in a professional capacity for, or in relation to, a person who lacks capacity and people being paid for ‘acts’ for or in relation to a person who lacks capacity. These categories include a variety of healthcare staff, social care staff (social workers, care managers, support workers) and others who may occasionally be involved in caring for people who lack capacity, such as ambulance crew, housing workers or police officers. They will often include care assistants in a care home and home-care workers.

Further information

The legal definition of a person who lacks capacity is set out in section 2 of the Mental Capacity Act 2005 and elaborated on in chapter 4 of the Ministry of Justice's Code of Practice.

See also the Department of Health's core training sets on the Mental Capacity Act.

Mental Health Act 2007 (MHA)

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 the capacity to consent to that deprivation.

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 also enhances the human rights of people who have a mental disorder. It requires the Code of Practice that is to be published in connection with the Mental Health Act 2007 to include a statement of the principles informing decisions made under the Act, which addresses the following matters:

• respect for patients' past and present wishes and feelings
• respect for diversity generally including, in particular, diversity of religion, culture and sexual orientation
• minimisation of restrictions on liberty
• involvement of patients or service users in planning, developing and delivering care and treatment appropriate to them
• avoidance of unlawful discrimination
• consideration of the effectiveness of treatment
• account taken of the views of carers and other interested parties
• respect for patients’ well-being and safety
• account taken of public safety.

Further information

The Code of Practice for the Deprivation of Liberty Safeguards and training materials to support the implementation of this part of the Act are being developed at the time of writing this guide. Details of these will be put on the Department of Health and SCIE websites.

See Articles in the Convention of the Human Rights Act for the practical implications of the Deprivation of Liberty (Bournewood) safeguards.

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)

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 service user 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 toileting 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.

Further information

More information can be found in the Home Office's Guide to the Sexual Offences Act 2003 leaflet.

Safeguarding Vulnerable Groups Act 2006 (SVG)

This Act sets out a new scheme which 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 scheme will be introduced from autumn 2008 and replaces the Protection of Vulnerable Adults (POVA) List set up under the Care Standards Act 2000. It will:

• provide employers with a more effective and streamlined vetting service for potential employees
• bar unsuitable individuals from working, or seeking to work, with children and vulnerable adults at the earliest opportunity.

The potential for enhancing the dignity of people using services is that the new Act will allow for more effective checking of staff, including workers in healthcare settings who are not covered under the POVA List. People receiving direct payments or individual budgets will also be able to access the scheme to make checks.

Further information

For further information and training on the new Act see (link to Home Office’s Safeguarding Vulnerable Groups Act site).

Information legislation

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 detailed below.

The Data Protection Act 1998 (DPA)

Information held by public bodies is governed by the requirements of the Data Protection Act 1998 (DPA) which requires data controllers who process personal information to comply with a range of data protection principles. In essence, this Act supports the importance of sharing information with people using services. There are very few exceptions to this. 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 are 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 them, holding them, disclosing them and destroying them. The eight data protection principles are key to understanding the Act:

Further information

Click here for general information on the Data sharing and protection on the Ministry of Justice website.

See Data Protection Act 1998 - guidance for social services on the Department of Health website.

Statutory Instrument 2000 No. 415: The Data Protection (Subject Access Modification) (Social Work) Order 2000 can be found on the Office of Public Sector Information website.

The Freedom of Information Act 2000 (FoIA)

The Freedom of Information Act 2000 (FoIA) 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 service users 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 information

Further advice on handling personal information can be found on the Information Commissioner’s website.

Next: Background to Dignity in Care and its relationship to Human Rights legislation
Previous: Sources of law