SCIE Practice guide 09: Dignity in care
Promoting dignity within the law: Relevant articles in the Convention of the Human Rights Act
Article 2: a right to life
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 service users, 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 service users 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's Information sheet on care home closures.
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subjected to torture, inhuman or degrading treatment
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