SCIE Practice guide 09: Dignity in care

Promoting dignity within the law: Adhering to human rights law

This section:

• provides a brief history of the Human Rights Act (HRA)
• explains the features and terms of the Act relevant to dignity in care
• explores some of the potential and limitations of the Act
• provides examples of grey areas of interpretation relevant to health and social care.

The origins of the Human Rights Act

The primary purposes of the HRA are:

• to enable the rights set out in the European Convention on Human Rights 1950 (ECHR) to be enforced through the UK courts
• to provide a check on the activities of Parliament and public bodies.

The Act is set out in in http://www.opsi.gov.uk/ACTS/acts1998/19980042.htm

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.’ [Lord Justice Sedley, ‘Legal Action’, December 2003, p.19]

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, prior to the implementation of the Human Rights Act in 2000, enforcement of the Convention’s provisions was through the European Court of Human Rights in Strasbourg and not through the British courts.

Since 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. However, a rights-based culture is not achieved only by individuals saying what their rights should be or asserting their rights or by organisational policy and practice documents. It requires people who are in the front line of service delivery to understand the requirements of the law.

This is a much more subtle demand than simply giving people their rights when they demand them; it requires an understanding of the law and the balancing acts that are inevitable in society. Nonetheless, if frontline workers understand that there is a legal duty on them to avoid some of the routine indignities imposed on people using services, then the circumstances of many people’s lives will be improved. The case of Mrs Bernard (see box) illustrates the potential of human rights.

Explanation of some technical terms

Before describing the nature of rights enshrined in the Convention, it is necessary to explain some of the technicalities about the ways in which they operate and summarise some important aspects of the Convention that frontline practitioners may find helpful when trying to make sense of this complicated area.

Public bodies

While the courts have to consider the Convention rights in all cases, even if they do not involve a public body, a person can only bring a case under the Act if the act or decision in question is one made by a public body.

A public body is best understood as a body carrying out a governmental or public function, although the exact remit of public body is still being worked out by the courts. Examples of organisations which are definitely public bodies include local authorities such as councils, central government departments, NHS trusts, and state-run schools, hospitals and prisons. It also extends to private companies that exercise public functions, such as companies that run private prisons. There are, however, grey areas. Some bodies have mixed public and private functions – for the purposes of the Human Rights Act they are described as ‘hybrid’ authorities. The question of which bodies are ‘hybrid’ has turned out to be complex. Many housing associations, for instance, carry out functions which courts may decide are public functions. However, other functions would clearly be private functions.

It is difficult to provide clear guidelines on whether a housing association is or is not a public body. In one important case [Donaghue v Poplar Housing and Regeneration (2002) EWHC 2559], the court decided that because the housing association concerned had a particularly close relationship with and was performing very similar functions to a local authority, then it was a public body. However, in another case heard the same year [Heather v Leonard Cheshire Foundation (2002) 2 All ER 936] the Leonard Cheshire Foundation, a charity providing residential care for disabled people, was held by the court not to be a public body.

A decision in this area made by the House of Lords in June 2007 highlighted the scope and limits of the Human Rights Act. It concerned the private provision of care in a care home to a woman who was publicly funded (see box).

The House of Lords, on a majority decision, found in favour of the care home. It decided that the provision of care services by a private body did not engage the provisions of the Human Rights Act, even in circumstances where a public body was paying the fees of the service user.

Where a service is provided by a private organisation, even though the provision is publicly funded, individual victims of bad treatment cannot claim the protection of the European Convention. They are limited to private law remedies such as breach of contract or proving wrongdoing.

There are three points to note here.

• Local authority care workers and support workers or nurses in the NHS and other employees of public bodies are bound by the provisions of the Act.
• The law may change. The decision in the case of YL was not unanimous: there is the possibility of a different decision in the European Court of Human Rights, and the Joint Parliamentary Committee on Human Rights has recommended changing the HRA to specifically cover publicly-funded residents of private residential care homes.
• Finally, even if an organisation is not a public body, it is very useful for staff to be aware of the implications of the HRA. The Convention provides a sound framework for ensuring that service users’ dignity is preserved.

Living instrument

This is an important feature of the Convention. The Convention is a living instrument, which is designed to be interpreted in the light of current social and cultural conditions. It is not ‘frozen’ in the 1950s, when it was first drafted. So the fact that a challenge under the Convention has failed in the past does not mean that it will not succeed in the future.

The idea of rights as things that evolve as we become more aware of the impact of certain practices is particularly relevant to how people are treated in social care and health settings. For instance, what were once often seen as normal institutional practices in some care homes, such as putting residents to bed or providing meals at times that suited staff rather than residents, are now generally and rightly seen as unacceptable.

Margin of appreciation

This is a technical term that has lost some clarity in its translation from French. What it means is that the European Court of Human Rights will allow domestic courts (e.g. in the UK) some space to make decisions which reflect their national domestic concerns, rather than impose its interpretation on the way the rights laid out in the Convention should operate. This is particularly relevant when the domestic courts have to weigh up competing priorities, for instance the individual liberty of the service user and the reduction of risk to workers providing the service. Of course, the margin of appreciation can only go so far; the European Court of Human Rights does ensure some consistency in the interpretation of the Convention.

Victims

Only ‘victims’ can take action under the Act. What this means is that only people who have been directly affected by an act or omission of a public body can take action using the Act. This means that a patient pressure group, for instance, could not take action to enforce patients’ human rights. It could, however, be involved in any action taken by a person directly affected, providing support, expertise, evidence and so on. Victims do not have to be UK citizens.

Rights under the Convention

The rights in the HRA are taken straight from the European Convention on Human Rights. Rights are formulated in different ways under the Convention, and are categorised as absolute, limited or qualified.

Absolute rights

Some rights are so fundamental that they are absolute. These rights include the right to protection from torture, inhuman or degrading treatment, and the prohibition on slavery. What this means is that if a practice – for instance toileting in full public view with no recognition of the need for privacy – is found to be inhuman and degrading, it cannot be justified because of necessity or public interest.

Limited rights

Other rights are limited, but can be breached only in the explicit and finite circumstances set out in the ECHR. In other words, the Convention itself provides exceptions to the general right.

One example is Article 5: the right to liberty and security. Exceptions include the power of the state to arrest and detain people suspected or convicted of crimes and the detention of people with ‘unsound’ mind. Article 5 also states: ‘Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.’ This has enabled people admitted to hospital under compulsion or ‘sectioned’ under mental health legislation to challenge the operation of mental health review tribunals for not being speedy enough and for failing to ensure that patients are discharged quickly if the criteria for detention are not met.

Qualified rights

Certain rights are qualified, which means that interference with them (i.e. action which limits someone’s freedom under a qualified right) is permissible only if:

• there is a clear legal justification for the interference
• the action is necessary to achieve a legitimate aim – legitimate aims are set out in each article of the Convention
• the action is necessary in a democratic society; in other words, there must be both a pressing social need and the action taken must be proportionate to and no greater than the problem it seeks to resolve.

Examples of qualified rights are the right to respect for private and family life (Article 8) and the right to freedom of expression (Article 10). The wording of Article 8 illustrates what is meant by a qualified right.

Paragraph 1 of Article 8 sets out the right:
Everyone has the right to respect for his private and family life, his home and his correspondence. (When ‘he’ is written in a law it includes ‘she’.)

Paragraph 2 sets out the limits:
There shall be no interference by a public body with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well‑being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

So, in certain carefully defined circumstances Article 8 rights can be interfered with.

This Article is particularly important in connection with the provision of personal care services and with the handling of confidential information. The limits on Article 8 that are particularly relevant for care workers are where an action that would interfere with someone’s Article 8 rights is necessary for the protection of health or morals or for the protection of the rights and freedoms of others. This does not mean that the right can be overruled in all circumstances, for example, where the practitioner considers that the health of the service user is at risk. It is also necessary that the acts which make up the interference with a person’s human rights are proportionate to the aim of the interference. The examples below explain what this means.

Proportionality is a particularly important requirement. Interference with rights is not justified if the means used to justify the aim are disproportionate. For instance, a care worker may be concerned that a service user is at risk from traffic if she or he goes out alone. It would be disproportionate to the risk to lock the person in their room to ensure they were not injured in traffic. Medical treatment without consent poses particular problems. It cannot be imposed on someone except in very limited and statutorily defined circumstances that are supervised by the courts.

A more straightforward example is that the state can interfere with a person’s right to a family life if a child will suffer significant harm by remaining with the family, but not because the child will have a better standard of living if taken away from the family.

The qualifications on Article 8 mean that an individual’s freedoms must always be balanced against public safety – and remember that the state has a responsibility which is set out in Article 2, the right to life, to protect the safety of its citizens. So, as long as the interference with the person’s private life is legitimate and proportionate, the rights of individuals can be breached.

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