What does the Human Rights Act
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
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"
] 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.
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."
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."
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 servicesand I have
heard thisis, '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?'"
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
] 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
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
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
] 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".
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",
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.
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
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
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."
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."
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
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.
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".
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".
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."
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
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"
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