As the size of our retired population grows, and our social norms change, we are seeing an increasing demand for care and nursing homes to support those who are not able to have their needs met within the community.
These older adults – indeed many younger adults as well – may have come to these placements through shared decision-making, or through Best Interest decisions made on their behalf. Others may be in care settings as a part of discharge-to-assess models, respite, or as a step-down placement for rehabilitation prior to returning home.
However, the quality of care across the UK is not consistent, and in some cases has been found to be quite poor – in particular, in the wake of the Covid-19 pandemic. In this blog then, we aim to explore the role of ‘human rights’ in the care setting, and what lessons we can learn to improve the quality of care going forwards.
What are our Human Rights?
The European Convention on Human Rights (ECHR), was established to protect and uphold core human rights that every person should have.
In 1998, the UK introduced the Human Rights Act, which gave further effect to the rights and freedoms guaranteed under the ECHR, enforcing that all public authorities must follow this statutory direction. It further enables a court case to be raised if a breach has occurred.
The Human Rights Act sets out the fundamental rights everyone in the UK is entitled to in a series of ‘Articles’, where each article deals with a different right. In terms of the healthcare sector, the following are perhaps among the most relevant:
- Article 2: Right to life
- Article 3: Freedom from torture and inhuman or degrading treatment
- Article 5: Right to liberty and security
- Article 8: Respect for your private and family life, home and correspondence
- Article 9: Freedom of thought, belief and religion
- Article 10: Freedom of expression
- Article 14: Protection from discrimination in respect of these rights and freedoms
We should also note that as of June 2022, a new Bill of Rights has been introduced to Parliament, and at the time of writing, we are still awaiting its implementation. This Bill aims that powers be moderated according to need and ensures updates in case law are accordingly assimilated into the Act.
Freedom from torture and inhuman or degrading treatment
Article 3 of the Human Rights Act is perhaps under-referenced within the care sector in terms of its application around safeguarding and basic standards of care. By which we should emphasise the need for freedom from ‘inhuman or degrading treatment’. I would argue that this can include unprofessional, disrespectful, abusive care standards, such as doors being left open while transferring a patient in a toileting hoist; leaving patients unable to call or ask for help by keeping buzzers out of reach; and leaving them immobile in a quiet room without stimulus – treating them as a ‘job to do’ rather than as a person.
There are of course several significant cases that could be argued fall under a breach of this specific Article, such as those discussed in our Covid Isolation or Seclusion and Landmark Cases blogs. Further examples include Cygnet Yew Trees Hospital and Jeesal Cawston Park. These are by no means ‘the normal’ situation in care settings, however they need to be reflected on, with appropriate lessons learnt and applied in all areas to prevent such issues occurring again.
Right to liberty and security
In his judgement of a case in 2007, Mr Justice Munby posed the question ‘What good is it making someone safer if it simply makes them miserable?’ (see item #120) This question challenges us to reflect on how we can safeguard and protect a person, while promoting their individuality and quality of life.
Lady Hale expanded upon this argument in her response to the Cheshire West case (2014), observing that ‘a gilded cage is still a cage’, referring to how even the nicest appearing and supporting care setting is in fact depriving a person of their liberties if they are not free to leave, thus imprisoning them through continual supervision and control.
Thus, through these cases, Article 5 of the Human Rights Act is possibly the most frequently quoted right associated with the Mental Capacity Act. However, of course, there will be cases where a Deprivation of Liberty may be both necessary and proportionate to keep a person safe, the DoLS process was established under the Mental Capacity Act to safeguard and protect an individual’s Rights in this scenario.
This is a developing area of legislation, in terms of the ongoing consultation around the new Code of Practice and LPS. Please see our blog series and guest blogs on this particular topic. I would also encourage readers to read and reflect upon Lucy Series’ book, Deprivation of liberty in the shadows of institution.
Inquiry into Human Rights in locked down care homes
In 2021, Martin and Kuylen published a paper looking at human rights in locked down care homes during the Covid pandemic. It reported concerns of both ‘safeguards to ensure that restrictive measures in care homes respect the liberty rights of residents’ and ‘practices regarding DNACPR decisions in care homes’.
Within their paper, the authors highlighted that 18% of participants reported residents were being continuously confined to rooms for more than four weeks linked to Covid.
Considering the pool of participants surveyed (while allowing for deviation for unrecognised confinement plus errors in recording or otherwise) this figure reveals just how wide-spanning this increased level of isolation was seen in practice. Martin and Kuylen (2021), recognised that in comparison to the general public, restrictions on vulnerable people in healthcare were higher and more stringent. For which we still do not have a true, full and complete measure of impact for those within these health care systems.
The authors summarised as follows:
‘One of our most troubling findings is that the very professionals tasked with protecting the rights of exceptionally vulnerable residents found themselves unclear about what principles to apply in determining whether a particular restrictive measure complies with legal and human rights standards.’Martin and Kuylen (2021)
This quite startling conclusion implies that many individuals may have been failed in their right to liberty under the Human Rights Act (Article 5), among others. Martin and Kuylen (2021) further highlight that their enquiry found professionals were not clear in how to assess lawfulness of restrictive measures when applying for Deprivation of Liberty Safeguards (DoLS). This is concerning, especially considering resources, and training available alongside the length of time that DoLS has been in practice. Not to mention the impact this has upon affective proportionate care planning, person-centred care and least restrictive measures.
As an Occupational Therapist and advocate, I often wonder, are we too quick to place people in care when there may be less restrictive options available in the community? It does seem as though sometimes as a society we are guilty of dehumanising individuals in care, especially older adults, providing care in a ‘robotic’, transactional manner, rather than adopting a dignified, person-centred approach.
If the report by Martin and Kuylen tells us anything, it is that we do not actively reflect and apply the Human Rights Act (1998) and the European Convention on Human Rights as much as we should. It is quite concerning to see so many cases where institutions are making poorly judged blanket decisions on behalf of people in their care – where people are locked away for their ‘protection’, while their rights are overshadowed by financial practicalities, and maybe also a lack of training and understanding on the part of those delivering the care; with often no one to advocate on behalf of those vulnerable people who cannot advocate for themselves.
This is a topic I am deeply passionate about, and hope to explore more in future blogs. If you have a comment on anything you’ve read here, we’d love to hear from you. Please do post a comment below, or send us a message via the contact details above.