SCIE Practice guide 09: Dignity in care

Promoting dignity within the law: Relevant articles in the Convention of the Human Rights Act

Article 8: the right to respect for privacy, home and family life

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 a person need not be assessed under because they would be likely to have to pay for any services. 

Article 8 and respect for an individual’s home

Service users’ rights to live in the home of their choice are an obvious example of a right protected by Article 8, and there has been important litigation on this issue. The decision of the health authority in the case of Mrs Coughlin (see Sources of law), for instance, was successfully judicially reviewed because her needs had not been properly considered. The commitment made by the local authority 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 case of Mr Lindley, the court found that he had not relied on the assurances made to him, to his detriment. Moreover, the local authority's knowledge of Mr Lindley’s needs had developed since it made the assurances, and it was right for it to have changed its conclusions as to how his needs were to be met. 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 service user’s rights to privacy.

Further information

For general information see the Ministry of Justice's section on Data sharing and protection, which sets out principles which safeguard confidential information for citizens.

See also Department of Health's sections on:

• Patient confidentiality and Access to Health Records.
• Data Protection Act 1998 - guidance for social services.
  
• Independence, choice and risk: a guide to best practice in supported decision making

Article 8 is the most open to interpretation and prompts particular dilemmas, because a service user’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 Summary of further legislation.) 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 service user lacks the capacity to make decisions or consent to care or treatment.

Practice points

• Local authorities should take into account both the individual service user’s wishes and, where appropriate, those of his or her family and friends when making decisions about residential care and similar major moves. If it is hard to work out what a person’s wishes may be, in some circumstances an advocate may be appointable (see IMCA provisions of the Mental Capacity Act 2005 in the Ministry of Justice's Code of Practice and the Department of Health's core training sets on the Mental Capacity Act).
• Assessments for social care and other services should be carried out without due delay, and appropriate services should be provided so that care and support are adapted to the needs and preferences of the individual as far as possible.
• Assessments should take into account all risks of service provision, including the risk of closure of a service. Something such as the closure of a care home or closing down a service may by itself seem to be only an organisational matter, but its loss may impinge on service users human rights.
• Service providers should record the decision-making process, ensuring that every effort is made to determine the service user’s preferences. This is particularly important when service users do not have the capacity to make specific decisions for themselves
• Personal information should be stored securely and should only be accessed by people with authority to have it.
• Organisations should provide training for staff on the importance of confidentiality, pointing out the ease with which an individual’s rights to privacy can be breached and how this can be prevented.
• Effective complaints procedures need to be in place (see Complaints section of this guide). These include organisations that are contracted to supply social or healthcare services under service level agreements; and should let people know how to take complaints about maladministration further, to the relevant Ombudsman system.

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.

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 service user’s freedom.

The MCA’s Code of Practice 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 for the new Deprivation of Liberty safeguards, when it is issued, this will cover areas that might relate to issues of restraint.

Services users, 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. Whistle-blowing under the Public Interest Disclosure Act 1998 is an option for staff who feel that their concerns are not being addressed.

Further information

See the Complaints section of this guide.

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

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