Joint Committee On Human Rights Eighteenth Report

3  Understanding how the Human Rights Act applies to older people in healthcare

67. In the Annex to this Report, we outline the various laws and guiding principles which may broadly be described as human rights instruments and which are relevant to this inquiry. The priority, in our view, is to develop greater understanding of the application of the HRA to older people's healthcare. This is because the HRA is a UK statute enforceable by UK courts which sets out the fundamental rights which all people, whatever their age, are entitled to enjoy. This inquiry has sought to explore the difference that human rights principles can make to older people in receipt of health and residential care services. We were impressed by the commitment to a human rights approach in healthcare shown by everyone who provided evidence to us. As our inquiry has revealed, however, there are still many people whether they be patients, care home residents or staff who do not know much about the application of human rights to healthcare. We agree with the British Institute of Human Rights' comment that "the human rights of older people are particularly invisible in society".[154] Our concern, shared by our predecessor Committee, is that the HRA has not been implemented properly and, as a result, has been insufficiently understood and applied. We see it as part of our function to improve understanding of human rights in society and we therefore set out in this Chapter, by reference to what witnesses to this inquiry told us, our understanding of how the HRA applies to older people in healthcare.

The transformative purpose of human rights

68. In their Report on the case for a Human Rights Commission in 2003, our predecessors noted the transformative purpose of the HRA, which was to develop a culture of respect for human rights:

69. This analysis, with which we agree, is inspired by the goals of the Universal Declaration of Human Rights, which are the achievement of both protection and social progress for all. These cannot be attained without adherence to the underlying human rights principles of dignity, respect, equality and fairness. We see the purpose of the Human Rights Act, not as an end in itself, but as a tool that can and should be used in law, policy and practice to enable these social justice goals to be achieved. The human rights legislation therefore assists in the quest for a decent civilised society where individuals are treated fairly, with equality and with respect for their dignity.

70. It appears to us to be axiomatic that when a human rights culture prevails within a hospital or care home, then not only will the climate be right for people (both service users and members of staff) to bring issues of concern to the notice of the authorities; but it will be less likely to be necessary because the right kind of culture already exists. Race on the Agenda summarised this point in the following way:

    […] to create a human rights culture you need a two-way process. It is what I call "the push and pull effect" […] where individuals are aware of their rights and they can demand their rights if they need to. But if the culture of human rights is present then they will not have to do that.[156]

71. Someone working at an NHS Trust has been quoted by the NHS Confederation giving her personal view of what happens in practice:

    If we really had a human rights approach, we wouldn't have reports of old people not being fed or people lying on dirty beds. Something happens both within people's individual behaviour and at organisational level; we don't on a day to day consistently deliver people's human rights.[157]

What does the Human Rights Act add?

72. An issue that emerged during our inquiry was, when it is self-evident that nurses and care workers should be treating people in their care properly and decently, what can the Human Rights Act add? We are aware that this view may be held by people who are sceptical about the value of the Act and it may also be held, as some witnesses quoted below told us, by people working in healthcare who simply do not know much about it. We therefore explore this question more thoroughly here.

73. An emphasis on the need to protect the dignity of people, whether they are elderly or other vulnerable adults or children, has recently become more prominent in public debate. Last year the Department of Health launched the "Dignity in Care" initiative to "ensure all older people are treated with dignity when using health and social care services"[158] stating:

    […] we want to create a zero tolerance of lack of dignity in the care of older people, in any care setting. We want to inspire and equip local people, be they service users, carers, relatives or care staff with the information, advice and support they need to take action to drive up standards of care with respect to dignity for the individual.[159]

74. The Government's action in this area is clearly significant. Action on Elder Abuse told us "while some have criticised the Government's 'dignity in care' campaign as a 'gimmick', the reality is that it is addressing the poor experiences of a substantial number of older people and this should be recognised."[160]

75. The increasing use of the word "dignity" in the context of social care has led people to think more about what dignity means. In an issue of the British Geriatrics Society's newsletter from last year the editor asked "what is dignity anyway? In an ideal world, it should be a matter of common sense and old-fashioned good manners."[161]

76. Dignity of course is one of the fundamental principles underlying the ECHR and the concept itself has been the subject of judicial consideration both in our domestic courts and the European Court of Human Rights at Strasbourg (see the outline in the Annex). The question that is being asked is, why do we need the HRA to protect people's dignity when service providers should see it as part of their existing duty of care? Gary FitzGerald of Action on Elder Abuse told us that "one of the arguments you would hear from the care providers services—and I have heard this—is, 'Why introduce another layer of terminology of human rights when actually you are asking me to do what I am already being asked to do under the Care Standards Act?'"[162]

77. The Care Standards Act 2000 provided the Department of Health with the power to issue national minimum standards governing the way in which care homes operate. We discuss these in more detail in Chapter 6. These standards do not, however, explicitly set out that residents of care homes have the legal right to be treated with respect for their dignity. Instead they set out the duties of care to which providers of care should adhere. In our view there is a significant distinction, with implications for users of services, between a "duty to provide" under care standards legislation and a "right to receive" under human rights legislation. We believe that when health and social care workers carry out their function to the best of their ability this should be both because they see it as their job and responsibility to provide certain levels of care and because they understand that the patient has a need, reinforced by the law, to be treated with respect for their dignity.

78. The Minister neatly elucidated this distinction when describing the effect of the HRA on "best practice" in the provision of health and social care services as follows:

    Best practice means that we […] reform public services […] to give more power and control to those who are patients or users of services and their family members and carers than has been the case historically in terms of the relationship between professionals and organisations and those who use the services. Does that in reality in many cases require underpinning by legislation based on rights? My argument […] would be yes […].[163]

79. An example of how this "power and control" provided by the HRA can be deployed was explored in oral evidence in a discussion between the Committee and the British Institute of Human Rights (BIHR). The BIHR were pointed by the Committee to evidence provided by another witness:

We heard […] about this lady who claimed there was a trail of urine […] from her mother's bed to the lavatory, and she complained about that sort of behaviour. To me that is not abuse of the Human Rights Act, that should never have happened under any circumstances whether we have the Human Rights Act or not.[164]

80. Replying, Katie Ghose of the BIHR said:

    The point is we can now use the Human Rights Act to do something about that. I can give you countless examples […] in reports we have published, where people have directly used the fact that we do have our own domestic law which for the first time gives us positive entitlement to be protected from inhumane and degrading treatment which can be used in a very practical way. You should see what happens when the argument is put and […] an individual [can] hold an institution by the scruff of its neck and say, "This isn't acceptable".[165]

81. When asked whether bringing the HRA into the discussion simply complicated matters and instead it was actually a question of "getting a grip of the care home or the system which is allowing these things to happen",[166] Ms Ghose answered as follows:

    I suppose the question there is how do you get a grip on a system? Human rights is not the only answer, I am sure there are lots of answers to these horrible things which happen to people but it is an answer, an approach, and the research which has been done has come back from people saying, whether it be a family member or a nurse on a ward, "We find this stuff useful. This is how we have used it in a practical way. We would like our organisation to do more of it". People are telling us they are finding the human rights ideas, language and practical tools useful and I think we should listen to that, do some more research and find out how it can be put to good use.[167]

82. The HRA therefore empowers users of public services who are often in vulnerable circumstances and who would otherwise be powerless in the face of inherently unresponsive systems.

83. We believe that many people, particularly older people in hospitals and care homes, do not want to feel that they have to demand treatment that they should be able to take for granted. One of the Act's purposes is to grant a power to service users to hold public authorities accountable to respect Convention rights. We recognise that there are people who, together with their families and advocates, can make good use of this power. The publication by the BIHR Changing Lives gives many examples where ordinary people have done just that and, in particular, without having to go to court to claim their rights. But there are also a large number of people who do not want to have to claim their human rights. Mr FitzGerald of Action on Elder Abuse put it starkly:

    The argument we have at the moment in human rights very much reminds me of the argument ten years ago in the community about who provides a bath to an old person, is it a social bath or a health bath? I remember one old woman of 80 saying, "Frankly, folks, I do not give a damn what it is, I just want my bath […] I don't care what you call it and what label you give it, I just want to be treated right. I want sympathy and understanding and care that matters and makes me feel human. I do not mind whether it is called 'human rights' or 'dignity in care'."[168]

84. There are also of course, as the Alzheimer's Society pointed out, many people who are not in a position to be able to assert their rights themselves. This is where the other side of the equation (the "push" side) comes in. A fundamental purpose of the HRA is to provide a legal framework for public authorities to use when they are providing public services. By adopting this framework and the accompanying human rights approach to decision-making and delivery of services, the services themselves should be improved for everyone. The essential point is that, under the positive obligations doctrine (explained in the Annex), the HRA requires public bodies to act preventatively to ensure that the right systems are in place rather than, as is the case under common law, seeking to take action after things have gone wrong. The Act therefore provides a framework to encourage high standards of healthcare practice but, because it has the force of law, it also acts as a backstop in helping to make sure that a positive approach to respecting human rights becomes the norm.

85. Best practice and the rights of patients are two sides of the same coin under the HRA, but they are different sides. Best practice is achieved through effective leadership, institutional change and proper training of staff, but rights underpin best practice and allow patients to say, "It is my right to be treated this way". Many witnesses to our inquiry who are responsible for service provision well understood the role of human rights in healthcare. In the opening remarks of their written submission, the NHS Confederation state "we believe there is an historical bias against vulnerable people in the health service which must be addressed and the Human Rights Act is a valuable framework through which to embed a new culture."[169]

86. The impact of the HRA on the provision of health services was described succinctly by the Royal College of Nursing "[…] human rights […] can be used as a lever to ensure that older people get the services they need and in that respect I think it is very helpful."[170] In our view, the areas of healthcare where human rights principles are engaged and which therefore present challenges are reasonably clear. The Royal College of Nursing summarised them as "[…] access to services and the political prioritisation of such services; the general culture surrounding respect and value of older people and the need to ensure adequate provision of quality, person centred care."[171]

87. The HRA provides an impetus for finding solutions to these issues within a legal framework. The NHS Confederation expressed more fundamental concerns about the purpose of the NHS in their evidence to us:

    I think that the NHS has a massive problem [...] the biggest issue […] is the whole culture and attitude of what we believe the NHS is there for. […] We spend our time talking about things in terms of "cure" - elective surgery, where you take an illness, you cut something out, everybody is happy about it and we all go on - yet 80% of our care is spent on people with multi-system chronic disease. We really have our priorities back-to-front, it seems to me, in terms of thinking about what the NHS is there for. We have reached the stage where we value care far less than we value cure.[172]

88. In our view, the principles underlying the HRA make a valuable contribution to boosting the caring side of health services. Similarly, the fact that there now exists a legal framework underpinning the need to treat people with respect for their dignity should lessen the confusion that can surround the provision of services by overworked (and possibly under trained and underpaid) healthcare workers. The Alzheimer's Society spoke of the difficulties that can occur:

    What people are regularly reporting to us is that they do not see the leadership in hospitals explaining who it is who has responsibility for the welfare of patients. For example, who is it who has responsibility for making sure that someone is properly nourished and hydrated and […] who is responsible for looking after the continence management. What we have seen […] is that often nurses firstly do not have the time to be able to do this type of work well, but I think we are also seeing no clear understanding of whose job it is. Typically, what a carer will report to us is "I asked the nurse if she would be able to help my mother with eating her dinner" and she said, "Ah, no, that is really the job of a care assistant, find a care assistant".[173]

89. If the responsibility for looking after patients was regarded within hospitals not only as a welfare issue but also as a human rights issue, placing the interests of the patient at the centre and requiring clear lines of management and accountability, we believe that these sorts of problems could be reduced.

90. The question whether there is sufficient funding of healthcare is outside our remit but clearly relates to this inquiry. Action on Elder Abuse suggested to us that:

    […] the primary debates in both the health and social care sector have ignored the Human Rights Act and have instead been focussed upon costs, rather than quality of care provision. We are addressing a "mass production" approach toward older people, rather than a "quality approach".[174]

91. The Royal College of Physicians of Edinburgh, however, observed that "looking after older people well is a lot cheaper than looking after them badly."[175] This observation is reflected in the Human Rights Act's purpose of acting preventatively rather than curatively.

92. A culture of respect for human rights in society is crucial. The protection of and respect for human rights are the responsibility of all of us in society. People who work for public authorities, whether they work for the Government or a local hospital, also have a legal duty under the HRA to protect and respect the human rights of the people to whom public services are provided. Service providers should therefore use human rights principles as, to adopt the Royal College of Nursing's phrase, a "lever" to improve their services.

93. The Human Rights Act gives legal force to the concepts of dignity, respect, equality and fairness. It therefore has more teeth than any governmental initiative focusing on the need for dignity in care. The HRA's functions are to provide a legal framework for service providers to abide by and to empower service users to demand that they be treated with respect for their dignity.

94. We recommend that the Government, other public bodies and voluntary organisations should publicly champion an understanding of how the recognition of human rights principles can underpin a transformation of health and social care services. This should lead to a greater understanding of human rights in civil society and more effective implementation of the Act within public authorities.

95. We also recommend that the Commission for Equality and Human Rights in fulfilment of its duty to "promote understanding of the importance of human rights"[176] should ensure that such an understanding is widely disseminated.

96. We now go on to consider how the HRA has in fact been implemented within the Department of Health and other public bodies.

154   Ev 170, para 5. Back

155   Sixth Report of Session 2002-03, The Case for a Human Rights Commission, HL Paper 67-I/HC 489-I, Vol 1, para 9. Back

156   Q 273. Back

157   Ev 233. Back

158   Ev 105. Back

159   About Dignity in Care, Department of Health website, 29 June 2007. Back

160   Ev 222. Back

161   British Geriatrics Society, Newsletter, Issue 8, November 2006. Back

162   Q 236. Back

163   Q 377. Back

164   Q 275. Back

165   IbidBack

166   Q 276. Back

167   IbidBack

168   Q 233. Back

169   Ev 230. Back

170   Q 285. Back

171   Ev 187. Back

172   Q 336. Back

173   Q 214. Back

174   Ev 220. Back

175   Ev 153. Back

176   Equality Act 2006, Section 9(1). Back

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