SCIE Practice guide 09: Dignity in care

Promoting dignity within the law: Further reading and glossary

Glossary

Capacity – the ability to make a decision about a particular matter at the time the decision needs to be made. The legal definition of a person who lacks capacity is set out in section 2 of the Mental Capacity Act 2005 and elaborated upon in chapter 4 of the Code of Practice.

Common law – so called ‘judge made’ law. A system of law developed by the courts which depends upon judicial application of precedents decided in earlier cases. It is distinct from statute law which is legislation passed by Parliament.

Delegated legislation (or secondary legislation) - Many statutes (which are primary legislation) give Ministers and other executive bodies, such as the Welsh Assembly Government, power to produce detailed regulations which are not debated by Parliament but have statutory force.

Declaration of incompatibility – this is a decision of the courts that informs Parliament that primary legislation may be in breach of the UK’s obligations under the ECHR. Parliament is not obliged to change the law as a result of a declaration of incompatibility.

Equality and Human Rights Commission - a non-departmental public body (NDPB) established under the Equality Act 2006 – accountable for its public funds, but independent of government. 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. Its website is www.equalityhumanrights.com

Equity – principles of fairness developed by the courts to mitigate the harsh impact of certain common law rules. For example common law remedies are limited to damages (financial compensation) whereas equitable remedies such as specific performance (insistence that a party performs its obligations) and injunctions (orders preventing certain behaviour such as harassment) can be granted at the discretion of the courts.

European Convention on Human Rights – the document drafted by European nations who were members of the Council of Europe after the Second World War. It sets out the agreed rights and freedoms of individuals.

European Court of Human Rights – this court sits in Strasbourg, France and hears cases brought against those states who are parties to the European Convention. It acts as a final decision maker on allegations of non-compliance.

Guidance - this may be statutory or non statutory. It provides advice and assistance on the procedures for putting into actions provisions of statute. Statutory guidance –that is guidance authorised by statute - is more authoritative than non-statutory guidance. The Code of Practice under the Mental Capacity Act 2005 is an example of statutory guidance. Guidance does not have the force of law, but good reasons, recorded in writing, are needed to justify deviations from guidance.

Human Rights – these are the rights and freedoms of individuals that have been agreed as fundamentally important in maintaining a fair society.

Human Rights Act 1998 – This Act contains, at Schedule 1, the fundamental rights set out in the European Convention and enables people in the UK to take complaints about human rights to UK courts.

Joint Committee on Human Rights - this is a committee of both Houses of Parliament which scrutinises proposed legislation with a view to determining whether or not human rights are respected. It also carries out inquiries into problematic areas such as human rights and terrorism, and human rights and vulnerable people. The website of the JCHR is (link)

Protocol - there are a number of protocols to the Convention. These are rights which are later additions to the rights under the Convention

Public authority – people who carry out functions of a public nature are likely to fall into the definition of public authority. The exact remit of public authority is still being worked out by the courts. Examples of organisations which are definitely public authorities are

Central government
Local government
Courts and tribunals
Prisons
NHS Trusts

Statute – legislation passed by parliament. Statutes start life as Bills which are discussed in parliament. They become statutes – Acts – when they receive Royal Assent. Note an Act does not necessarily come into force when it receives Royal Assent. Different Acts have different implementation schedules which are either contained in the statute itself or announced later in parliament (for example, the Mental Capacity Act 2005 was not implemented until 2007, and then in two parts).

Previous: Summary of further legislation

Practice guide 9 menu

SCIE Practice guide 09: Dignity in care

Promoting dignity within the law: Further reading and glossary

Further reading

Human Rights

Discrimination law

Community Care

Glossary

In this section

Download