12.Memorandum from Help the Aged
1. In its memorandum on older people and
human rights, Help the Aged identified the lack of protection
for older people in private and voluntary homes as an issue of
particular concern following the decision of the Court of Appeal
in R (on the application of Callin and Heather) v Leonard Cheshire
Foundation. We therefore welcome both the interest of the
Joint Committee on Human Rights in seeking to find ways to fill
the apparent lacuna in the law, and the opportunity to provide
more focussed and detailed evidence on a matter which has a profound
impact on the lives of significant numbers of older people.
2. In 1998 the Office of Fair Trading ("OFT")
found that there had been a rapid expansion of private and voluntary
sector homes throughout the 1980s and 1990s while local authority
provision fell and NHS provision, already small, was declining.
By 1998, the independent sector provided accommodation to more
than half the residential home population; about 75 per cent of
residential and 80 per cent of nursing home residents were over
the age of 75.[71]
By March 2001 there were 341,200 residential places and 186,800
registered beds in nursing homes, private hospitals and clinics
in England. The number of local authority staffed homes had continued
to fall and the independent sector provided 92 per cent of all
homes and 85 per cent of places in residential care homes.[72]
At a conservative estimate, in England alone, about 355,000 older
people are therefore without any guarantee that their fundamental
human rights will be protected and without recourse to any legal
remedies for human rights violations.
3. We recognise that the lacuna in the protection
of human rights demonstrated by the line of cases culminating
in the Court of Appeal's decision in the Leonard Cheshire
case has far wider implications for the provision of public services
by private providers. For example, domiciliary care is increasingly
provided by the private and voluntary sectors and increasingly
to older people who need a very high level of support. However,
our emphasis here is on the position of older people in care homes
in the commercial and voluntary/charitable sectors, who, in our
view, are particularly and perhaps uniquely at risk.
4. In summary, we believe that:
(a) Two groups of residents in independent
sector care homes do not enjoy protection of their human rights
at present: those whose accommodation is arranged by the local
authority, and those who make their own arrangements, whether
voluntarily or because they are required to do so. All residents,
whether "self funding" or otherwise, should be able
to assert their convention rights as necessary against their care
home provider.
(b) With the great majority of care homes
now being in the independent sector, Section 6(3)(b) should be
amended to ensure that private and voluntary care homes come within
the definition of public authority and are subject to the section
6 duty to act compatibly with Convention rights.
(c) A Human Rights Commission should be established
to reduce the risk of human rights abuses occurring and to enforce
remedies when they do.
(d) Alternative legal remedies do not offer
reliable or speedy protection to residents and cannot adequately
fill gaps in human rights protection.
Question 1: Whether in your view the meaning of
public authority under the Human Rights Act, as interpreted by
the courts, is the right one?
5. The meaning of public function under
s6(3)(b) of the Human Rights Act ("HRA") was treated
by the High Court in Leonard Cheshire as synonymous with
its meaning under CPR 54.1(ii) for the purpose of determining
whether or not a body was amenable to judicial review. Just before
the HRA came into force, Moses J, in R v Servite Houses ex
p Goldsmith,[73]
had considered whether judicial review could be brought against
a private care home provider. On the authorities, he decided that
it could not, but gave leave to the claimants to appeal to the
Court of Appeal. The matter was settled and the appeal was not
heard. Moses J said:
"I cannot conclude this matter without expressing
my sympathy for the applicants. This case represents more than
tension between public law and private law rights, but a collision.
If I am right in my reasoning, it demonstrates an inadequacy of
response to the plight of these applicants now that Parliament
has permitted public law obligations to be discharged by entering
into private law arrangements."
6. As the written submission by Justice
in the Leonard Cheshire case suggested, the indication
during the passage of the Human Rights Bill was that the meaning
of "public function" would be broadly construed in favour
of the widest possible protection of human rights within the framework
of public law. Jack Straw MP, then Home Secretary, said:
"The Government has a direct responsibility
for core bodies, such as central government and the police, but
they also have a responsibility for other public authorities in
so far as the actions of such authorities impinge on private individuals.
The [HRA] had to have a definition of a public authority that
went at least as wide and took account of the fact that, over
the past 20 years, an increasingly large number of private bodies,
such as companies or charities, have come to exercise public functions
that were previously exercised by public authorities."[74]
7. Against this background, it is surprising
and disappointing that the courts have adopted a narrow view of
the scope of public functions and thus the definition of a public
authority under the HRA. The requirement, by s2 of the HRA, to
take into account the European Court of Human Rights jurisprudence
"in determining a question which has arisen in connection
with a Convention right" must encompass the underlying principle
of European jurisprudence, that of adopting a purposive approach
to statutory interpretation. Such an approach was not adopted
by either the High Court or the Court of Appeal in Leonard
Cheshire. Rather the judiciary relied on the common law jurisprudence
on the scope of public authority for the purposes of judicial
review. In doing so it accepted the shackles that Moses J had
railed against in finding himself reluctantly bound to exclude
Servite Homes from judicial review in that case. In our view the
Court of Appeal could and should have taken up the implied invitation
of Moses J to develop the common law in response to the changing
climate in which public services are delivered to individuals.
8. A purely functional approach to analysing
the role of the Leonard Cheshire Foundation ("LCF")
in relation to the claimants whose cases were before the court
(ie publicly funded residents), taken together with a purposive
reading of s6(3)(b) of the HRA, would, in our view, have enabled
the Court of Appeal to find that these claimants could rely on
the HRA.
Question 2. What, in practice, might be expected
to be the impact of the definition of public authority applied
by the courts for the protection of human rights?
9. Older people in private care homes fall
broadly into two groups for the purposes of this debate. The first
group mainly comprises those who become resident in private care
homes because they are placed there by the social services authority,
under its duty under Part III of the National Assistance Act 1948
to arrange accommodation for those older people who are in need
of care and attention that is not otherwise available to them.
They are funded in part by the social services authority. A far
smaller group of nursing home residents are fully funded by the
NHS, because their needs are primarily health needs and they are
accommodated under section 3 National Health Service Act 1977.
Some residents will be accommodated under section 117 Mental Health
Act 1983 in order to meet their after-care needs, usually following
detention under section 3 of the 1983 Act. All these residents
fall within the first group which is encompasses residents who
are supported by public funding and, in each case, accommodated
pursuant to a statutory duty (albeit a target duty under section
3 NHS Act 1977). The unsuccessful claimants in both the Servite
Homes and Leonard Cheshire cases were from this group.
10. The second group of residents are usually
referred to as "self-funders". For the most part they
are former owner-occupiers who have had to sell their homes in
order to fund their care. They currently fall outside the remit
of the protection of the HRA on any reading of the scope of public
functions in this area of law. It was accepted by both parties
in the Leonard Cheshire case that such residents would
have no basis on which to claim to rely on the HRA. We return
to the position of this group of residents in answer to question
three below.
11. In our memorandum on older people and
human rights[75],
we identified key areas. Some of those are not affected by the
decision in Leonard Cheshire. Those that are include:
(a) Article 2 issues which are engaged when
care homes put the lives of older people at risk through lack
of access to suitable medical care and medically trained staff.
This has led, for example, to inadequate assistance being provided
for vital human functions, such as eating and drinking, resulting
in death from dehydration. It has also given rise to inappropriate
changes in drug administration causing premature death.
(b) Home closure decisions in which human
rights issues, certainly under Article 8, and arguably under Articles
2 and 3, are engaged. The discrepancy between residents in the
public and private sector is immediately evident in the contrasting
decisions in, for instance, R (on the application of Madden)
v Bury MBC[76]
(in which the court quashed a closure decision made by Bury MBC
because of a failure to consider the impact on Article 8 rights
and whether the inevitable interference could be justified by
Article 8(2)) and the Servite Homes decision (above).
(c) Cases of physical or sexual abuse and
neglect in private care homes. The ECtHR cases, for instance Z
& others v UK (2001)[77]
and E & others v UK (2002)[78],
concerning children whose abuse at home has not been prevented
by the relevant local authorities, have found that the failure
to take reasonable steps which could have altered the outcome
or mitigated the harm in these cases was sufficient to engage
Article 3. The possibility of a remedy against the relevant social
services or health body in these cases is discussed below.
(d) The use of restraints. A range of methods
for restraining older people are used in care homes: physical
restraints in the form of locked doors or confining individuals
in chairs; chemical restraints through drug use to control behaviour
and facilitate an easier life for home staff and management, and
electronic restraint through tagging. The potential Articles 3,
5 and 8 issues arising in the context of restraint are complex
and balances will have to be struck, but the issue is an important
one in which the courts should play a key role.
12. The exclusion of private and voluntary
sector care homes from the scope of the HRA will entirely preclude
the possibility of recourse to the courts in relation to home
closures and make it considerably more difficult and, in practice,
impossible for many residents in the other situations we have
outlined. These practical difficulties in accessing legal remedies
for vulnerable older people are discussed in more detail below.
The supervisory role of the higher courts has played a key role
in determining important social and ethical issues in the field
of social and health care, for instance the development of best
interests' jurisprudence by the Family Division of the High Court
in relation to patients lacking mental capacity. In our view the
artificial limiting of the development of human rights and judicial
review law by the exclusion from its remit of the over 85 per
cent[79]
of older people in private care homes is unjustifiable, and especially
so in the context of the economic complexities of the modern state
and the social and ethical issues that inevitably flow from the
increasing longevity of our population.
Question 3 What steps, if any, should be taken
to address any potential gaps in HRA protection and accountability,
following the Leonard Cheshire case?
13. All care home residents should have
their rights under the HRA protected. We think that the following
steps should be taken:
(a) Section 6(3)(b) HRA 1998 should be amended
to ensure that private care homes are within the definition of
public authority and are subject to the section 6 duty to act
compatibly with Convention rights (see answer to question 4 below);
(b) all care home residents, whether "self
funding" or otherwise, should be able to assert their Convention
rights, if necessary, against their care home provider; and
(c) a Human Rights Commission should be
established.
14. The legal position of "self funders"
is currently unclear, but there can be no doubt that the vast
majority do not at present enjoy the protection of their Convention
rights. Their position merits some analysis. In arguing that section
6 (3)(b) would be given a wide meaning, the Lord Chancellor said,
"Doctors in general practice would be public authorities
in relation to their National Health Service functions, but not
in relation to their private patients."[80]
However home care residents, unlike private health care patients,
cannot choose whether or not to become self funding. The mandatory
charging scheme (section 22 National Assistance Act 1948 ("NAA"))
requires those who can afford to pay for their care to do so.
As social services' financial and personal resources have become
increasingly stretched, a practice has developed of not arranging
care for "self funders". The legal basis for this is
that the duty to arrange accommodation only arises under section
21 NAA in respect of those who are "in need of care and attention
which is not otherwise available to them". Those with capital
over the relevant threshold, it is argued, have such care and
attention otherwise available because they can afford to purchase
it. Thus the social services authority owes no duty and the resident
has no rights to protection even in relation to the local authority.
15. The possession of capital of more than
£19,500 does not preclude the need for care and attention
under the NAA. For instance older people with dementia will not
be able to make their own arrangements regardless of their financial
circumstances, older people at risk of financial abuse from relatives
will similarly require the support of the social services authority
to ensure that their care needs are met. The House of Lords in
Robertson v Fife[81]
considered the extent of the responsibility under Scottish law
of social services authorities to "self funders". It
decided that the requirement, introduced by the Community Care
(Residential Accommodation) Act 1998, to disregard capital below
the current limit for charging purposes when deciding whether
or not "care and attention were otherwise available"
was just that. It was designed to cure the mischief disclosed
in R v Sefton MBC ex p Help the Aged and Others[82]
and could not be read as authorising taking capital above the
limit into account. Lord Hope analysed the process in this way:
"The assessment of need and decisions as
to whether they call for the provision of any of the community
services come first. The assessment of means, and the requirement
to pay what a person can afford, comes afterwards. Notional capital
can be taken into account at the stage when charges are being
made for the services. But it must be left out of account at the
earlier stage when decisions are being taken to provide these
services." (paragraph 53)
16. Unfortunately the Department of Health
has added to the uncertainty. In the "Frequently asked questions"
about the Delayed Discharge Bill[83]
(now Act), the following appears:
"Q 17 Is the local authority liable for
patients who are self funders?
A 17 "Self funders" can be a misnomer.
The local authority are not responsible for patients who make
their own arrangements and fund their onward care. However, the
local authority are responsible for any care home residents for
whom the LA has made the arrangements (even if the resident contributes
the full cost to the LA of the placement) . . ."
17. We do not accept that it is within
the spirit of the National Assistance Act 1948 to exclude a significant
proportion of vulnerable and dependent older people from the protection
of the state. If people choose to make independent arrangements,
as in the Lord Chancellor's example from health care, they must
bear the consequences. That we accept. But the vast majority of
"self funders" do not choose their "independence".
They are outside the remit of the local authority and deprived
of any protection beyond that of the criminal law solely because
they have capital above a value determined by the Secretary of
State, currently £19,500 (in practice this means virtually
all those who own their own homes). The injustice inherent in
this arbitrary distinction needs to be addressed.
18. One approach would be to adopt the legal
analysis of the House of Lords in Robertson v Fife and make it
clear, through directions or further amendment of the NAA, that
social services authorities owe a duty to all potential residents
of care homes to arrange accommodation to those assessed as needing
it. The presumption would be that residents were accommodated
under the NAA unless the individual had actively rejected that
option in favour of making private arrangements.
19. Practically this would place a greater
burden on local authorities who currently leave "self funders"
to fend for themselves. It would also be unpopular with home owners
who charge significantly higher fees to self funders than to publicly
funded residents. This is because the local authority is able
to drive down prices through block contracts. In our view, it
is inequitable that residents with capital of over £19,500
should be both excluded from the public sector and yet effectively
required to subsidise it.
20. Our third recommended step is the establishment
of a Human Rights Commission, to take preventative steps to reduce
the risk of human rights abuses as well as helping enforce remedies
where they do occur. We are not here concerned with the structure
in which this function is carried out. What is clear is that the
human rights of older people would be better protected if a Commission
existed. The British Institute of Human Rights found that, in
relation to older people, "the interviews conducted ... suggest
that the [HRA] has so far made no difference to the quality of
care in residential homes"[84]
Older people rarely complain and relatives fear complaints will
lead to reprisals which will worsen the predicament of a vulnerable
older relative. Consequently, the clearest possible route to enforceable
rights is vital, as is the development of a culture in which respect
for human rights becomes embedded in the practice of social and
health care. A Commission is, in our view, essential in order
to develop this cultural evolution through the dissemination of
good practice, the use of investigative powers and so on.
QUESTION
4. WHETHER ANY
ALTERNATIVE MEANS,
APART FROM
SECTION 6 (3)(B),
(SUCH AS
CONTRACTUAL TERMS)
COULD EFFECTIVELY
FILL ANY
POTENTIAL GAPS
IN HUMAN
RIGHTS PROTECTION?
21. In our Memorandum on Older People and
Human Rights, we considered this question briefly. Our evidence
here builds on those observations, dealing first with contractual
protection and then with alternatives to amending section 6 (3)(b)
through the development of a more effective regulatory framework.
We believe that S6(3)(b) of the HRA should be amended.
22. "Self funders" currently contract
directly with care homes. Thus nothing short of legislative reform
could provide this group with protection. In fact even if Leonard
Cheshire had been decided in favour of the claimants, "self
funders" would still have been unable to rely on the HRA,
because the home would not, under s6 (5), be performing a public
function in relation to "self funders". This illustrates
why we believe that reform or clarification of the NAA as outlined
above (para 17) is an essential corollary to reform of s 6 (3)(b).
23. Lord Woolf, in giving the judgment of
the Court of Appeal in Leonard Cheshire, suggested that
adequate protection might be secured post-HRA by ensuring that
local authorities contracted with homes so as to ensure that HRA
compliance was a contractual term. However, it is unrealistic
to expect that vulnerable individuals going into care homes (often
as a result of a crisis) or their relatives, will be in a position
practically or emotionally to check the terms of the local authority's
contract for HRA compliance. The only mechanism for ensuring that
local authority contracts with homes provided for adequate human
rights protection would be to require it through the introductions
of regulations to that effect or to make compliance a condition
of registration (see para 25 below).
24. If the contract between the home and
the local authority purported to guarantee the protection of Convention
rights for local authority funded residents, how effective would
such protection be? There would be two routes by which a resident
could, in theory, obtain a remedy. The first would be, as a non-contract
party, under the Contracts (Rights of Third Parties) Act 1999.
However this would only be applicable if the contract expressly
provided for third party enforcement (s1 (1)(a)) and purported
to confer a benefit on the third party (s1 (1)(b)). However this
subsection is not applicable if on a proper construction of the
contract it appears that the parties did not intend the term to
be enforceable by the third party (s1 (2)). The enforceability
of the contract is therefore dependent on contract terms that
would need to be established under contract law in every case.
This could well lead to complicated and costly private law proceedings
simply to establish, as a preliminary issue, that the third party
could enforce any contract rights. This would need to be decided
before a court could consider the question of whether Convention
rights were engaged and, if so, whether they had not been protected
by the home in question. It would also mean that Convention law
questions were considered in a private law context, generally
in the County Courts, without the benefit of the specialist public
law expertise of the Administrative Court's nominated judges.
All in all, hardly a reliable or readily accessible alternative
to the provision of statutory rights.
25. The second method of enforcement would
be by way of a claim in judicial review proceedings that the local
authority had failed in its public law duty to enforce its contractual
rights against the home for the protection of individual residents.
This approach would have the advantage of being heard by the Administrative
Court, but is an extraordinarily elaborate approach to the protection
of fundamental rights. The possibility of successful technical
defences being mounted through the combined efforts of the local
authority and the home as an interested party to the proceedings
must be considerable. The most likely result would be the further
isolation and vulnerability of the individual resident.
26. We have previously considered the option
of introducing a requirement to protect human rights as a pre-condition
to registration under the Care Standards Act. All private homes
have to be registered by the National Care Standards Commission
("NCSC") . This would have the advantage of enabling
all residents, whether publicly funded or not, to benefit. However,
as with the option already outlined, it provides for an elaborate
mechanism for enforcement with similar procedural and substantive
hazards. It could well lead to the NCSC having to defend proceedings
in circumstances in which it is the home that is at fault.
27. All the potential safeguards we have
considered are cumbersome and unreliable. They are also indirect
and therefore likely to take a long time. This leaves individuals,
already near the end of their lives, with the prospect of remaining
in a situation where they or their relatives contend human rights
abuses are taking place with no hope of any timely intervention.
It will, in reality, mean that very few cases are brought. Residents
and relatives will be too fearful of the impact on the ongoing
care relationship to embark on elaborate, lengthy and uncertain
proceedings. The situation in Z v UK and E v UK (see
above) where a remedy in damages for abuse that has been allowed
to continue unchecked by public authorities is obtained many years
after the children concerned have been the victims of abuse and
suffered psychological trauma as a result is cold comfort to the
vulnerable older care home resident.
28. By contrast, directly enforceable rights
to all care home residents under the HRA would mean that human
rights abuses can be dealt with by the Courts in a timely way,
if necessary by interim injunctions. In that way the protection
enjoyed under the Human Rights Act has some chance of becoming
a reality for care home residents.
16 April 2003
71 Older People as Consumers in Care Homes, a report
by the Office of Fair Trading, OFT October 1998. Back
72
Community Care Statistics 2001 www.doh.gov.uk/public/sb0128.htm. Back
73
[2001 LGR 55. Back
74
HC Debates, 16 Feb 1998, col 773. Back
75
Memorandum on older people and Human Rights. Help the Aged January
2003. Back
76
[2002] EWHC 1882. Back
77
3 CCLR 210. Back
78
26 November 2002 (n.33218/96). Back
79
Community Care Statistics 2001 ibid. Back
80
Hansard HL vol 583 Col 811, quoted in the Leonard Cheshire
judgment. Back
81
(2002) 5 CCLR 543. Back
82
[1997] 4 All ER 532. Sefton argued unsuccessfully that the duty
to arrange accommodation was not engaged in respect of residents
who had been self-funding and still retained some capital, albeit
well below the current limit, as prescribed in regulations. Back
83
http://doh.gov.uk/jointunit/delayeddischarge/index.htm Back
84
Watson, J. (2002) Something for everyone: the impact of the
Human Rights Act and the need for a Human Rights Commission. London:
British Institute of Human Rights Back
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