15. Memorandum from Help the Aged
Thank you for the opportunity to offer further
evidence on the structure, functions and powers of the proposed
Commission for Equality and Human Rights.
EQUALITY
We warmly welcome the proposed Commission for
Equality and Human Rights and believe it will be well placed to
play a strong role in encouraging a culture of equality and of
respect for diversity and for human rights across the UK.
It is proposed that the Commission will have
wide promotional powers, enabling it to promote equality not just
in relation to the six strands but more broadly in the interests
of all citizens, even in the absence of specific legislation or
regulation.
It is proposed that it will also have the power
to undertake inquiries on general equality matters and that it
will have enforcement powers with regard to employment matters
for all six strands. However, the lack of any proposed legislation
to ban discrimination with regards to goods and services for the
new strands, and age in particular, means that it will not be
able to take enforcement action on goods and services for the
new strands.
Consequently, there will still be a hierarchy
between the strands, with some "more equal than others".
We believe that it is essential that this omission should be remedied
as soon as possible—we can see no reason why it should be
any more acceptable to discriminate against people with
regard to goods and services because of their age (or religion
or sexual orientation) than it is because of their race, sex or
disability. Indeed, the Government has already gone some way down
this road, since it has sought to ban age discrimination in the
NHS and Social Care organisations under Standard One of the National
Service Framework for Older People.
HUMAN RIGHTS
PROMOTION OF
HUMAN RIGHTS
We warmly welcome the proposals for a strong
promotional role for the new Commission with regard to Human Rights.
We believe that a positive approach is the right one and is much
needed. The ideal is to ensure that all organisations providing
health, social care, housing and similar services to older people
(in the public and private sectors) have practice which is founded
on and consistent with the Human Rights Act at all times. The
promotional powers of the CEHR with regard to human rights are
therefore extremely important.
The law already exists in the form of the Human
Rights Act (HRA): the problem is, as the Audit Commission has
pointed out, [60]that
is messages have not been integrated into the way public services
are provided. Since older people are major users of these services,
their human rights can be at risk.
The stance of local authorities, the NHS and
similar organisations towards the HRA needs to become much more
proactive. While significant efforts have been made to improve
the quality of health and social care for older people through
the National Service Framework for Older People, and through inspection
and regulation systems, human rights (and indeed rights of any
kind) are not explicitly central to these efforts. The CEHR will
need to provide clear guidance and education and work closely
with the inspection and regulatory bodies for health and social
care to ensure that human rights become the cornerstone of public
service standards. A major public education job is also required
to ensure that the general public understands its rights under
the Act accurately.
PROTECTION AND
ENFORCEMENT
However, we believe that proposals currently
on the table for the Human Rights role of the CEHR fall short
of what is required to protect the rights and interests of older
people. Experience from the anti-discrimination field indicates
that promotional powers on their own are unlikely to be sufficient
to effect the necessary change in culture. (For example, the Government's
voluntary Code of Practice on Age Diversity in Employment has
been helpful in developing good practice amongst employers who
are already committed, but has had little impact on the majority
who are not.)
There is ample evidence to show that human rights
can be at risk in many situations where older people are dependent
on the care of the state or its agents. Action on Elder Abuse,
[61]Help
the Aged[62]
and Age Concern, the British Institute for Human Rights[63]
and public bodies such as the Commission for Health Improvement[64]
have all produced such evidence. The Health Select Committee is
currently undertaking an Inquiry into Elder Abuse, which is due
to report shortly and will bring more evidence to public attention.
Violations of older people's human rights can
be categorised under four headings:
— Abuse by individual members of the
public (usually extended family members).
— Abuse by individual health and care
staff.
— A culture of abuse, oppression, or
neglect within an organisation or institution such as a particular
hospital ward or care home. [65]
— Systemic abuse—accepted practice
in the system, such as long delays in providing a service that
someone has been assessed as needing, or the splitting up of couples
when insufficient support is made available for someone in need
of care to remain in their own home.
The last three of these categories should certainly
command the attention of the CEHR.
Older people have very great difficulty in challenging
the violation of their human rights, not least because they may
be quite literally dependent on the services responsible for the
acts in question. They may be further impeded by illness, impairments
of speech, hearing or sight, mental incapacity, lack of access
to a private telephone or to contact with a third party, or fear.
They largely lack knowledge of their rights (unsurprising when
the whole system operates as if older people do not have
such rights) and usually have no means of exercising them, since
support in the form of independent advocacy bodies geared to their
needs is very scarce.
The CEHR needs to have enforcement powers at
its disposal if it is to protect older people from human rights
violations; it needs to have some teeth. Our concern is that it
seems likely that the new body will have very limited enforcement
powers, and especially so with regard to age and the other new
strands.
Proposals currently on the table indicate that
the CEHR will be able to take up human rights issues when these
are associated with discrimination cases, but not if they are
free standing. Since age discrimination in the provision of goods
and services is not unlawful, there can be no such cases with
regard to age. The CEHR will therefore be unable to take enforcement
action in circumstances when older people's human rights are violated,
regardless of how strategically significant such cases may be,
unless a case of race, sex or disability discrimination can be
made.
Older people who are at risk of human rights
violations need the CEHR to be able to take assertive protective
action. The rights of many hundreds of older people are at risk
now; they cannot wait for a long slow process of education and
persuasion. The CEHR needs to be able to protect individuals,
and to ensure that policy and practice which violates their rights
can be directly challenged when necessary. It needs to be able
to support and advise individuals, ensure that advocacy is available
to them, and undertake named inquiries where necessary. Indeed,
it is likely that the credibility of the Commission itself could
be compromised in the eyes of the public if it could not
act in the interests of those who find it difficult or impossible
to act for themselves. Powers of protection and of enforcement
should of course be used judiciously and according to the judgment
of the new Commission but they are surely necessary if the Commission
is to be an effective champion of human rights.
10 March 2004
60 Audit Commission: Human Rights: Improving public
service delivery. 2003. Back
61
Action on Elder Abuse: Listening is not enough 2000; and
Memorandum on Elder Abuse: Evidence to the Health Select Committee
2003. Back
62
Help the Aged: Memorandum on Older People and Human Rights
2003. Back
63
Watson J: Something for Everyone BIHR 2002. Back
64
Commission for Health Improvement: Emerging themes; services
for older people March 2003. Back
65
For example see Commission for Health Improvement report on Rowan
Ward, Manchester Health and Social Care Trust, September 2003. Back
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