Annex
We believe that the CEHR should have the following
functions with regard to human rights.
PROMOTIONAL FUNCTIONS
— Encourage good practice and awareness.
As for equality and diversity, the CEHR should raise awareness
and encourage good practice on human rights.
— Promote human rights across the
whole population. The Human Rights Act applies to everybody,
whether or not they are covered by anti-discrimination legislation.
This function therefore enables the CEHR to act on those services
where older people's human rights are considered to be at risk,
even though goods and services are not covered by legislation
banning age discrimination.
— Work towards eliminating violations
of human rights by undertaking Inquiries where there is cause
for concern (issues of concern to older people include for example
the use of medication in care homes) or where the application
of the HRA is unclear (for example regarding the use of restraints
in care settings).
— Work with public bodies and those
charged with regulating them to promote a culture of respect
for human rights and ensure that compliance with the Human Rights
Act is central to all policy and practice.
— Keep the relevant legislation
under review and advise Ministers of any need for changes
in legislation, or respond to requests for advice from Ministers.
A key issue here would be the application of the HRA to health
and care providers in the independent sector and the failure of
statutory agencies to secure the human rights of those whose care
is provided through such agencies, however such care is funded.
To these ends it should have the power to:
— carry out research and provide education;
— undertake general Inquiries, call
for evidence, research the facts and underlying issues, make recommendations
and publish reports;
— make grants to local advice and advocacy
organisations which promote human rights at a local level and
provide support to those whose human rights may be at risk.
PROTECTION FUNCTIONS
The Commission for Equality and Human Rights
needs to be able to go further than this. It needs to be able
to act to protect the human rights of those who, for a variety
of reasons, are not in a position to act in their own interests.
The primary route for enforcement of human rights
(as for discrimination) is currently action by the affected individual
through the Courts. This rarely happens when the human rights
of older people are violated, because the individuals concerned
are rarely in a position to take such action or to challenge the
institutions on which they depend. The CEHR should therefore be
able both to support individuals and to act strategically, in
order to lay down clear markers about the application of the HRA
in such circumstances. Protection might take the form of:
— Provision of assistance to individuals:
The CEHR should ensure that those who wish to take legal action
on human rights grounds have access to independent advice, support
and advocacy. The provision of such advice and support should
where possible be through independent local ogranisations offering
both advice and advocacy. The CEHR could itself support individuals
when cases meet certain criteria; eg where a case is likely to
clarify the law; where it affects a large number of people; where
it will have a significant impact on one or more sectors; where
it flags up the need for legislative change etc.
— Issue codes of practice on compliance
with the HRA, on a similar basis to that proposed for anti-discrimination
measures. The CEHR should work with the regulation and inspection
bodies for the services in question, such as the Commission for
Health Improvement (or CHAI as it will become) and the National
Care Standards Commission (or CSCI as it will become).
— Intervene in court cases as a
third party in order to advise the court.
ENFORCEMENT FUNCTIONS
Given the level of concern about the violation
of older people's human rights, we believe that the CEHR should
also have enforcement powers, and should be able to:
— Undertake named investigations
where there is serious cause for concern about the human rights
record of a particular body. These investigations would allow
the CEHR to act in the absence of an individual complaint—a
particularly important function, when, as in the case of older
people in the health and care system, complainants are so disempowered
and so vulnerable to human rights abuses. It can be extraordinarily
difficult to get such concerns addressed: one group of relatives
concerned about the quality of care in a care home had to campaign
very publicly in the press before their complaints were taken
seriously. [66]In
another instance, an "exceptional panel of Inquiry"
was set up (to examine the proposed closure of a care home in
Plymouth and its impact on residents[67])
but this was very unusual and the panel had no power to require
a course of action, only to advise.
— Issue a compliance notice enforceable
through the courts or to enter into a binding agreement with
the body in question. The object is to take strong action, where
necessary, to protect human rights and ensure a change of culture
within the organisation.
— Use alternative dispute resolution,
as proposed for discrimination, and explore the potential for
this as a positive way forward with regard to human rights.
66 Lynde House relatives group 2002. Back
67
Clarke J, Stevenson A, Parrott B: Report and findings of the
extraordinary complaints panel; Granby Way Residential Care Home
for Older People. Plymouth County Council and Nicola Macintosh
solicitors 2002. Back
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