SCIE Practice guide 09: Dignity in care

Promoting dignity within the law: Summary of further legislation that supports Dignity in Care

Care workers in health and social care have a whole range of legal and professional responsibilities both to the people for whom they provide services and to others, such as their fellow workers and unpaid carers. These responsibilities are very important. Human rights should not be used as an excuse for failing to discharge those responsibilities. The Bichard inquiry into the murders of Jessica Chapman and Holly Wells highlighted concerns that confusions about the operation of human rights and data protection legislation caused failures to record essential information about alleged sex offenders. It was not the Human Rights Act that caused the difficulties but the failure to understand how it operates. The key point is that the human rights of any one individual do not override duties to ensure public safety. The response to this inquiry led to the Safeguarding Vulnerable Groups Act 2006.

Quality in care

Circumstantial influences on dignity, such as the living conditions in care homes or the standards in day centres, are governed by a whole host of regulations.

National minimum standards

The first National Minimum Standards for Care Homes for Older People were published in 2001. They consist of 38 standards, each with an outcome for people using services. They set out a set of requirements to ensure that care is focused on a service user’s needs. The individual standards do not stand on their own, all the standards should be complied with and placed in the context of the Care Standards Act 2000 and its regulations.

National minimum standards in social care are an example of the chain of accountability. The interpretation of the national minimum standards in each care setting in England is the responsibility of inspectors from the Commission for Social Care Inspection. But, as the inspectors take a whole view of the care service and focus on the experience of the users of services, it is not always possible to define the interpretation of an aspect of the national minimum standards in isolation.

It is worth noting that, for employers, a particular lapse in standards can breach more than one area of law. For example, in a care home looking after incontinent residents, allowing pools of urine to lie on the floor would lower the living conditions of the residents to an unacceptably undignified level, but would also contravene the Health and Safety at Work Act (1974) for employees.

Food Safety Act 1990, Food Safety (General Food Hygiene) Regulations 1995 and Food Safety (Temperature Control) Regulations 1995

The Food Safety Act covers the preparation, storage and service of food and requires the registration of food businesses whether they are run for profit or not. A ‘food business’ includes canteens, clubs and care homes.

For more information see the Mealtimes and nutrition section of this guide.

Legal responsibilities

The fact that a responsibility is a legal duty generally means that any action that interferes with a qualified right, such as the rights in Article 8, is going to be seen as legitimate and necessary. It does not answer the question about proportionality (whether the action is excessive).

The Manual Handling Operations Regulations 1992 cover the transporting or supporting of a load (including people). While employers are required to ensure that they comply with the regulatory framework, this does not mean that an individual’s human rights can be disregarded. What is required is a balanced approach that reduces risks for workers while at the same time maintaining the dignity, privacy and autonomy of those they are caring for. The problem of lifting an overweight person, for example, must be solved not ignored (see box).

Responsibilities to carers

Family and friends who act as unpaid carers often play a vital role in maintaining the dignity of service users, particularly when the person they are caring for is incapacitated, either physically or mentally. There are legal responsibilities to carers and some of these are contained in the following Acts:

• Carers (Recognition and Services) Act 1995 (CRSA)
• Carers and Disabled Children Act 2000
• Carers (Equal Opportunities) Act 2004 (see SCIE's Practice guide 5: Implementing the Carers (Equal Opportunities) Act 2004)

Other responsibilities to carers are contained in the Mental Health Acts 1983 and 2007 and the Mental Capacity Act 2005.

In summary, the responsibilities for practitioners are to assess carers’ needs and to involve them in developing support for service users if that what both wish.

There may be circumstances in which responsibilities to carers appear to conflict with the human rights of service users. If a service user lacks the capacity to make a decision or to consent to care and treatment, then the provider of health or social care services must act in the best interests of that person.

It is generally in the best interests of the service user to have the carer involved in decisions about his or her care (but sometimes it is not). If there is a conflict between the best interests of the carer and the best interests of the service user, then the best practice is to seek advocacy and separate practitioners for both parties. It may be that independent advocacy services should be involved or commissioned to resolve the conflict. In some cases an independent mental capacity advocate (IMCA) might be able to act; the local authority and NHS trust will have details of how to contact this service locally and advise on what services it offers.

Next: Articles of the Human Rights convention relevant to Dignity in Care
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