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The Human Rights of those in Care

Speech to the National Care Association - Coventry, October 2007

"Human Rights are about the standard of care we should expect in residential institutions for the elderly, the young and the mentally ill."

Good Afternoon. I am delighted to be here to talk to you about human rights and the Human Rights Act and how it has affected the attitude and approach of us all towards human rights. I will argue that this has been for the better, not just for lawyers and criminals as parts of the media portray but for us all, each and everyone.

Human rights, as you are all aware, are an issue which are almost always in the news. Only last week the Prime Minister launched a consultation process on a Bill of Rights to build upon the existing Human Rights Act and this is a process I wholeheartedly welcome. It is an opportunity for all sections of society to engage in a dialogue about the value and importance of human rights. Parts of the media, however, have been attacking the entire concept of human rights rather than criticising individual judgments based upon them. Rights are portrayed as a one way street - only of benefit, for example, to criminals who wish to use them as an impediment to justice and with the consequence that they result in insulting the victims of their crimes and their families as well. Little, if any, reference is made to the fact that it is inherent in the very concept of human rights that they come with responsibilities, not only to other people but to all of society. Rights and responsibilities are two sides of the same coin. Unfortunately, there is a great deal of myth and misinformation about, often peddled by those pursuing political agendas quite separate from the Human Rights Act or those who do not take the Act on its own terms.

Let me give just one recent example of this disturbing trend. Learco Chindamo as a fifteen year old in December 1995 murdered Philip Lawrence, a widely respected and admired headmaster. Chindamo was a member of a violent gang who as a teenager had terrorised parts of West London. He was rightly jailed for the murder of Philip Lawrence. Next year he is eligible for parole and the issue arose in August of this year whether he should be deported to Italy when he is eventually released. Italy is the country of which he is a national but where he has not lived since the age of five and he has no family there. The Home Office wanted him deported to Italy but the Asylum and Immigration Tribunal, which deals with such matters, decided in August that he could not be deported. Mrs Lawrence while expressing her disappointment responded in a very dignified and measured way to the Tribunal’s findings. The decision of the Tribunal, however, provoked outrage among some others and large parts of the media. The decision was described as ‘a glaring example of what is going wrong in our country.’ Almost all of the opprobrium was centred on the Human Rights Act. Caller after caller on national phone-in radio shows reiterated that human rights had gone ‘too far’ and columnists in some newspapers again argued that the Human Rights Act should now be repealed. Yet the Human Rights Act and the provisions of the European Convention on Human Rights played a marginal role in the Tribunal’s assessment as to whether or not Learco Chindamo should be deported to Italy. The primary basis for the Tribunal’s decision was the EC Citizenship Directive yet this was barely mentioned, if at all.

The reporting of cases in such distorted terms whilst almost entirely ignoring those where rights helped ordinary and often vulnerable individuals, accentuates the danger that many people will come to see rights as irrelevant to them. The risk is that controversies such as the Chindamo case may make people feel that human rights are actually harmful. This is a profoundly worrying trend, and one to which all of us who care about human rights must respond.

Human Rights are not just about protecting ‘bad’ people as is often so stated. They are portrayed as only helping criminals, murderers, asylum seekers and drug dealers and not the marginalised and vulnerable members of society whose lives they seek to improve. Even some of those who support human rights see them as solely concerned with repressive regimes such as that in Burma or, if they see them as relevant to this country at all, about offering safeguards against some grave injustice. But rights are not just about political prisoners in other countries or torture and imprisonment. They are about each and every one of us as we go about our daily lives. They give us protection against bullying at work or against discrimination in health treatment if we are elderly. They are about the standard of care we should expect in residential institutions for the elderly, the young and the mentally ill.

For the rest of this talk, therefore, I want to examine what human rights are, and crucially what they are not, where they come from and why they are important for each and every one of us and in particular how they relate to the rights and responsibilities of both those in care and those helping to provide that care.

The modern origin of the legal concept of human rights can be directly traced to the horror at the appalling conduct and policies witnessed during World War II and a steely determination to make sure that the law was robust enough to ensure they were never repeated again. In that crucial period after the end of the Second World War, Governments across the world came together with the objective of identifying the responsibilities of States to ensure the protection and enjoyment of these rights.

Identifying these fundamental individual rights was seen as a form of protection against the abuse of power. These identified rights include: the right not to be subjected to degrading or inhuman treatment and the right to have our dignity protected; the right to have our family life respected; the freedom to meet and discuss ideas; the freedom to practice a religion or not as the case may be; and guarantees against being deprived of our liberty without a fair legal process. And it was also underlined that these rights stem from our intrinsic human dignity - that irrespective of our differences, where we come from, what we have done or are - terrorist, aid worker, criminal, police officer, adult, child, black, white, carer or lawyer - there is a basic level of respect and treatment that we are entitled to simply because we are human.

In Europe, which has been the home of not only the Enlightenment and Magna Carta but also the Holocaust, the determination to ensure that such atrocities never occurred again led to the drafting of the European Convention of Human Rights and the coming into operation of the World’s first specialised international human rights court, the European Court of Human Rights. This is an institution which for the first time in history allowed individuals to hold the State directly accountable before an international tribunal for how it had treated its own citizens.

For over 50 years, British citizens have been protected by the rights guaranteed under the European Convention, rights defined to protect against the excesses of the State. With the Human Rights Act 1998, these rights were “brought home” by enabling individuals to bring their claims in UK courts rather than going to the European Court in Strasbourg. By adopting the Human Rights Act the British government gave British citizens the opportunity to benefit from the rights protected by the Convention in British courts - a right that had long been enjoyed in almost all other European countries. Despite its proud history in helping to draft the European Convention and being a major force behind its adoption, Britain was in the strange position of being one of the very few European States not to allow the Convention to be directly relied upon in national courts by those whose rights had been infringed. The Human Rights Act corrected that anomaly.

But it is also important to stress that the Human Rights Act did not introduce the ‘alien’ concepts of rights into English law. One of the most important cases in English law in many years, in the context of terrorism considered whether evidence obtained by torture could be relied upon as evidence in courts. The repugnancy shown by their Lordships to the admissibility of evidence obtained by torture was as heavily based upon common law principles, which have existed in this country for centuries, as it was upon the prohibition of torture in Article 3 of the European Convention on Human Rights. The Human Rights Act enforced the protection of rights in English law - it did not introduce the concept of rights into English law.

It is also commonly assumed that human rights are absolute, that they have no limits. While that is true for some rights and correctly so, for example the right not to be held in slavery, rights are rarely absolute. The vast majority of rights simply cannot be absolute; the individual’s rights frequently conflict with those of others and of society as a whole. My right to express my opinions and views about someone may conflict with their right to privacy. Judgments on competing sometimes conflicting interests have to be made and a balance has to be struck between, in some cases, the interests of different individuals and, in other cases, the interests of the individual as opposed to those of society as a whole. The essential premise of human rights is finding a just balance between the demands of the general interest of the community and the requirements of the protection of the individual’s basic rights.

There is of course some truth in the allegation that human rights protect the worst people in society. As I have already mentioned we have rights because we are human no matter what we have done. It is only when the least favoured groups in our society are able to claim their rights that we can be confident that we too can claim ours. Human rights are an expression of our best impulses so as to guard us against our worst; principles to be applied without fear or favour no matter how difficult or testing times may be.

Some of you may think that as a lawyer specialising in human rights law, I would say this. You may be thinking what difference does this make to all of us? Well, it makes a real difference. One of the main ideas behind the Human Rights Act was to create a “human rights culture” and by doing so changing the cultural and social landscape of this country for the better. A human rights culture is about social policy. It is about making a better country for people to live in: reconnecting people and politics, improving public services, getting more respect into society, more respect for one for another’s basic human dignity and promoting basic values we can all share. A rights culture is about ‘mainstreaming’ rights and making them an intrinsic part of decision-making and planning. By having a human rights culture the way in which decisions affecting individuals should now be made must take account of their interests and rights by balancing them against those of other individuals and society as a whole. This is important in all sectors of society but it is particularly so in the care sector. Some of the most vulnerable in society be they children, the elderly or those with physical or mental impairments are looked after by the care sector and the manner in which decisions are made can have a profound impact upon the individuals involved.

There are many instances from practice, which have not involved the courts, where taking a human rights conscious approach to decision-making has made a fundamental difference to the outcome which is beneficial to all involved.

For example, a man with learning disabilities in a privately run residential care home had a history of starting fires. Although this had not occurred for over two years, care home staff were instructed by his psychiatrist to routinely search him each time he returned from being out while unsupervised to ensure he did not have on him any matches or a lighter. This practice was challenged by a health commissioner for the NHS Primary Care Trust which had contracted the care home to provide the man with residential care. The health commissioner invoked the man’s right to respect for private life (which is protected by Article 8 of the European Convention) to argue successfully that the blanket policy should be replaced with a proper decision-making process. The new decision-making process was based on an ongoing risk assessment and was communicated to the man to ensure he understood why, when, how and by whom he would be searched and when the practice would be reviewed. It was agreed that routine searching would cease after six months if no matches or lighter were found on the man and if he was not involved in any fire-related incidents. This solution not only respected the rights of the man involved but it was also effective, proportionate to the risk he posed and also avoided potential confrontation between the man and care home staff.

Another example where rights aware decision making made a real difference for the better concerned a larger woman in residential care who had not been showered or bathed for many weeks. The care home, with the agreement of the local authority which funded her care, had initially been providing her instead with a ‘strip’ wash so that staff did not have to lift her. The woman was very upset about the situation, especially because warmer weather was causing her to perspire. The woman felt she was being treated in a way that was degrading to her and was not respecting her dignity. Within days of this being raised a new occupational therapist was brought in to explore other options and it was quickly agreed that a hoist could be used. From this point onwards the woman was able to take a bath or shower according to her wishes and she was accordingly treated with dignity and respect. The interests of the care home staff were also given due emphasis in finding a solution acceptable to everyone.

In another example a young man with mental health problems was placed in residential care on a short-term basis. During a visit one day, his parents noticed unexplained bruising on his body. They raised the issue with managers at the home but their concerns were dismissed. They were also told that they were no longer permitted to visit their son. Once the parents invoked their son’s right not to be treated in an inhuman and degrading way and their right to respect for family life, the ban on their visits was revoked and an investigation was conducted into the causes of the bruising on their son’s body.

Finally, staff at a care home that was due to be closed after receiving human rights training learnt about the human rights implications of the decision to close the home. As a consequence they decided to halt the closure process, which had involved no consultation with those they were caring for, and started the decision making process again by consulting the residents, taking their views into account and explicitly considering the residents’ rights to respect for private life as protected by Article 8 of the European Convention which could encompass, among other things, the friendships and social relationships that the residents had built up over the 5 to 10 years they had been living in the care home. The wishes of the residents of the care home would not outweigh the countervailing interests of the others involved, in particular as Article 8 of the Convention is a limited right, but a decision which took their interests into account was fairer and more just than one which did not.

What all of these examples highlight is that as committed as those involved in the care sector usually are to the well being of those they help to look after, it is inevitable that there are some instances where standards lapse. Older people unfortunately sometimes are neglected or mistreated in a care home. Relatives are sometimes told they cannot visit because they ask awkward questions. Married couples are told that, against their wishes, they cannot stay in the same care home. These are usually seen as examples of poor practice but they are human rights issues. What these examples also highlight is that by considering these instances in human rights terms and by taking into account the rights and interests of all involved in the decision making process the outcomes are more satisfactory for everyone affected by them. The most effective way to achieve respect and protect the rights and interests of all, that everybody wants to see, is not through the courts but through proper training and raising human rights awareness and integrating it into our decision making processes.

Where the Courts have become involved they have time and again sought to strike a careful balance between the interests of all involved. As I noted earlier, despite what is often reported, the Courts do not simply seek to protect the interests of some with a total disregard to the rights of others. The Courts carefully look at the rights and obligations of all and make their decisions accordingly.

For example in a case from 2003 a decision to close a care home managed by East Sussex County Council was challenged on human rights grounds. It was in part argued by some of the residents that this violated their rights: specifically, the right to life pursuant to Article 2 of the European Convention; the right not to be subjected to degrading treatment pursuant to Article 3; and the right to respect for their home pursuant to Article 8 of the Convention. With regard to Article 2 the Court accepted the extended the meaning of that provision but did not feel that a real and substantial risk to the applicants was established and this part of the claim was quickly dismissed. The Court also did not feel that the decision to close the home was degrading to the applicants as claimed. In the context of the claim both Articles 2 and 3 are absolute rights but the Court did not feel that a case had been made. With regard to Article 8 and respect for an individual’s home the Court had to balance the interests of the residents and those of the Council. In doing so the Court gave due weight to the financial interests of the Council and how it was seeking to find the most effective way of fulfilling its various statutory responsibilities within existing financial constraints. On that basis it found that the interests and rights of the individuals did not outweigh those of the Council.

In another case, however, where a decision was taken by a Council to close a residential home without consulting the residents, the High Court found that this did amount to a violation of their right to a home under Article 8 of the European Convention. It was not the decision itself that violated their rights and the Court recognised that such a decision could be justified but the failure to consider the residents’ interests that was crucial. A proper process of consultation and consideration of the residents’ interests in the decision making process was essential.

These cases, however, involved care homes run and owned by councils. As you are all aware, nine out of ten care homes in the UK are now privately run and it is such homes that many of you are involved with. This does not mean that human rights considerations are not relevant to such homes, they clearly are. One of the most important cases decided since the Human Rights Act came into force, the YL case which was decided in June of this year, involved a private care home.

YL was an 84 year old woman with Alzheimer's disease. In January 2006, she became a resident of a nursing home under the terms of an agreement signed on YL’s behalf by her daughter. The home is privately owned, although YL’s care and accommodation was arranged and largely funded by the local authority in accordance with its statutory obligations to do so. Six months after becoming a resident in the home, the company which owned the care home wrote to YL's daughter giving her 28 days notice to terminate YL’s right to remain in the care home. The agreement between the parties allowed the care home to terminate the contract on four week’s notice but an undertaking had been given to do so only for ‘good reasons’. The termination was prompted by concerns - which are disputed - about the conduct of some of YL’s family during visits. There was evidence that YL would deteriorate clinically if she was transferred to an unfamiliar care setting. YL argued that the notice given by the care home was incompatible with her right to respect for her home under Article 8 of the European Convention on Human Rights and was therefore unlawful.

As many of you will be aware the Human Rights Act legally only imposes an obligation upon ‘public authorities’ or persons whose function are of a ‘public nature’ to respect the rights set out in the European Convention. The key question for the House of Lords, therefore, was whether the provision of care and accommodation by a privately owned care home largely funded by the local authority in accordance with its statutory obligations constituted a “function of a public nature” for the purposes of the Human Rights Act.

By the narrowest of majorities, 3 to 2 which indicates a very sharp difference of opinion in their Lordships’ House, YL’s claim was dismissed. It was decided that the provision of care and accommodation by a privately owned care home above did not constitute a “function of a public nature”.

Lord Bingham, the most senior Law Lord, in issuing a dissenting judgment argued that the situation complained of was precisely the “function of a public nature” that Article 6 of the Human Rights Act referred to. The three judges in the majority, however, relied heavily on private law principles and contractual remedies. They decided that a private care home was simply providing a service for which it charges a commercial fee and that the manager’s duties to its residents are governed by private law as opposed to being imposed by public law.

This did not mean, however, as I have already mentioned that the private care home did not have to respect the human rights of their residents. As one of the Law Lords noted there is an express agreement that the care home must observe the human rights of all its residents. Any breach by the care home of these human rights accordingly is challengeable under the contract with the local authorities .

For my part I fully agree with that logic. Unless Parliament passes legislation to that effect, local authorities should not be able to transfer their legal obligations to respect and protect human rights to care homes and in turn absolve themselves of their duties. Private care homes must, however, of course respect the human rights of their residents, as I am sure they all wish to in any case. But in the instances where things go seriously wrong and elderly residents are, for example, mistreated, any solution does not lie under the Human Rights Act but in the law of contract.

This decision of the House of Lords has been subject to comment and some criticism in the legal community from those who think the Lords should have used the opportunity to extend the scope of the Human Rights Act but there has been little, if any, comment in the general media. And this goes back to one of my earlier arguments. This case was a classic example of legitimate differences of opinion but the courts struck a well reasoned and fair balance between the rights and obligations of the different parties. Unsurprisingly it received little mainstream attention.

But I also feel that care residents, as is the case for all other individuals as well, should only have to rely on the courts in exceptional circumstances. An awareness of human rights in which the rights and responsibilities of all affected are considered in the decision making process is far more preferable. To that end the creation last year of the position of the Commissioner for Older People in Wales, based upon the models which already exist for children in all parts of the United Kingdom is very welcome. One of the most important responsibilities of the Commissioner is promoting best practice of treatment and part of the change in culture where rights and responsibilities are an integrated part of our thinking.

Conclusions:

The term human rights is now part of our everyday language. They are a constant feature of the language of national and international leaders. Although there are many that through their actions diminish the claim, I think it is important for us to stress that we do live in an age of human rights; in a world in which human rights are our lingua franca. We can talk about rights in a number of different capacities, as parents, workers and as individuals. But with rights come responsibilities. Human rights are not the preserve of lawyers and the courts as is so often assumed. Rights belong to us all regardless of our differences and due to the feature we all share, that we are human. By taking greater account of our rights and responsibilities in our day to day lives we can make society a better place for us all. That vision of human rights is very different from what some of the papers would have us believe!

Thank you.