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The Human Rights Act 1998 (HRA) came into force in October 2000 and brings the main rights and freedoms guaranteed by the ECHR 1950 into UK law.

It is now a UK statute enforceable by UK courts and sets out fundamental rights which all people are entitled to enjoy.

The Joint Committee on Human Rights is appointed by the House of Lords and the House of Commons to consider matters relating to human rights in the UK (but excluding consideration of individual cases). It is composed of six members appointed by each house. The Committee has powers to require the submission of written evidence and documents, and to examine witnesses. It received oral and written evidence from many organisations and individuals and it visited hospitals and care homes in North London, Copenhagen and Malmo (Denmark and Sweden are often cited as examples of best practice in the field of health and social care). The aim of the Committee was to examine how human rights principles can be applied to ensure that older people in hospitals and care homes are treated with greater dignity and respect. The inquiry focussed on older people and their receipt of healthcare services in hospitals and care homes (palliative care and domiciliary care being excluded).

Older people in hospitals and care homes
The Commission for Social Care Inspection (CSCI) demonstrated the size of the adult care home population nationally when they told the Committee they regulated nearly 19,000 separate care homes (approximately 4,000 nursing homes and 14,000 care homes with 441,335 places), with 77.9% of homes for older people being in the independent sector and 13% of homes in the voluntary sector. They also noted that one-third of users fund their own care.

People with dementia are significant users of social and health care services. A recent report found that direct costs to the NHS and social care of dementia are currently at least £3.3 billion a year in England (overall economic burden estimated at £14.3 billion – National Audit Office, Improving services and support for people with dementia, July 2007). One third of people with dementia live in care homes, and two thirds of care home residents have some form of dementia (evidence was received of the odd anomaly that some care homes refuse to take dementia patients even though the majority of people living in care homes have a form of dementia!). Approximately 25% of hospital beds are being used by people with dementia at any one time.

The Committee was pleased to hear the Minister’s assurance that “nobody should be discharged from hospital without appropriate arrangements being put in place for their care”. Whilst the Department of Health (DoH) guidance sets out a number of principles, it suggests should be applied, including that discharge should be “planned for at the earliest opportunity across the primary, hospital and social care services” (Department of Health, Discharge from hospital: pathway, process and practice, January 2003) the Committee was concerned, for a number of reasons, this is simply not happening in practice and was “routinely ignored”.

It was recommended the Government amend the Delayed Discharge Regulations (and issue guidance for hospitals and local authorities on the application of the Regulations) to allow for flexibility in applying the time period so as to ensure that the Article 8 ECHR rights of older people are respected.

The Committee was convinced that current legislation does not sufficiently protect and promote the rights of older people in healthcare, and that a significant power imbalance exists between service providers and service users. It also received strong evidence of historic and embedded ageism within healthcare for older people and felt these were important factors in the failure to respect and protect the human rights of older people. It recommended that the soon to be founded Commission for Equality and Human Rights (CEHR – begins in October 2007) monitors and reports upon the implementation and effectiveness of human rights and equality legislation in healthcare for older people.

How the Human Rights Act applies to older people in healthcare
The Committee agreed with the British Institute of Human Rights’ (BIHR) comments that “the human rights of older people are particularly invisible in society”. It felt there was a significant distinction between a “duty to provide” under care standards legislation and a “right to receive” under human rights legislation but hoped that if healthcare workers functioned to the best of their ability, both could be met. It also reinforced that the HRA empowers users of public services who are often in vulnerable circumstances and who would otherwise be “powerless in the face of inherently unresponsive systems”. The Report echoed a clear consensus that human rights are misunderstood by service providers and by older people themselves and also of widespread ignorance about how the HRA can be used.

The issue of confidentiality was addressed and providers of healthcare services should have systems in place to ensure that staff treat patient information confidentially, except where authorised by legislation to the contrary (Healthcare Commission Core Standard C13(c)). Help The Aged commented that the duty to maintain confidentiality could pose risks for a patient or resident who did not have capacity and that the issue of confidentiality is often misunderstood by health staff, particularly in relation to patients who lack the capacity to consent (the ‘Bournewood’ patient) to disclosure of information. It was felt consequently the principle of confidentiality is applied in an over-restrictive way (Articles 6 & 8) which can be a practical problem for carers (see S v Plymouth City Council [2002] – Article 8 includes a procedural requirement to be involved in decision making processes, including on behalf of a family member who lacks capacity).

The Committee recommended, via the CEHR, that the Government, other public bodies and voluntary organisations should publicly champion an understanding of how human rights principles can underpin transformation of health and social care services.

Department of Health’s leadership
Whilst the Committee commended the political leadership from DoH Ministers in recent months, it lamented the fact that this has come some seven years after the HRA came into force. It made clear it felt the failure of DoH leadership has meant that the Government’s job has had to be done by the often poorly resourced and powerless voluntary sector. The Committee felt that “none of the evidence” provided by the DoH gave them confidence that the HRA was “an integral part of policy-making”. Any policy developments were piecemeal and it recommended the DoH publishes a strategy of how it intends to make the HRA integral to policy-making in both health and social care.

The Report noted the DoH, in its written evidence, did not explicitly acknowledge any of the problems identified by other witnesses, but focussed “rather defensively” on the financial investment made into the NHS and the many initiatives launched by the Government in relation to older people (e.g. Dignity in Care campaign, November 2006).

It further recommended the DoH publish an evaluation of a pilot project undertaken by the BIHR and five NHS Trusts on using a human rights approach in healthcare.

Implementation of the Human Rights Act by providers of services
The Committee was further critical of the failure of both the DoH and the Ministry of Justice to provide proper leadership and guidance of health and residential care services on the implications of the HRA since it came into force. It recommended guidance on implementing a human rights approach (by the CEHR) should “emphasise that implementation should not be exclusively legalistic and should avoid being merely a tick-box exercise”. Lack of information at Trust board level and lack of training for staff were the two main reasons that Trusts reporting to the Healthcare Commission cited when self assessing, that they did not have assurance that they were promoting human rights. The Commission did not find this ignorance surprising since neither the DoH nor the Healthcare Commission has issued guidance to NHS Trusts on what promoting human rights means in practice.

The NHS confederation made the sensible suggestion that if the DoH were serious about a more joined up approach when promulgating a national human rights based approach, then it could become a requirement to gain Foundation Trust status, which it isn’t currently.

The campaign on privacy in toilet use by the British Geriatrics Society (Behind Closed Doors: Using the Toilet in Private) launched in April 2007 was used as a good example of demonstrating the importance of human rights in everyday work.

The report notes that the HRA requires public authorities to act compatibly with Convention rights and that public authorities have positive obligations. However in the seven years since the Act came into force it appeared that the Government had not properly understood this duty itself and so had not provided sufficient explanation about what it entails to others. The consequence of lack of information about what positive obligations means has inevitably led to a lack of understanding or implementation of it within public authorities.

The Committee suggested that measures reinforcing the positive obligations doctrine (whereby public authorities have an additional fundamental responsibility, in certain circumstances, to take reasonable measures to protect people’s rights) under the ECHR would kick-start the institutional changes that are needed within public authorities, and without such an obligation it was not confident that public authorities would implement them.

It further urged the Government to fulfil commitments to take action to bring private and voluntary care homes within the scope of the HRA as soon as possible, by regulation in the short-term, and by amendment to primary legislation in the longer term.

Health and social care inspectorates and NICE
The Committee felt that whilst requirements in the healthcare standards to “respect human rights” and treat patients with “dignity and respect” were welcome, they lacked specificity and recommended guidance to NHS Trusts on how to meet these standards in practice. It dispelled the “unfortunate impression” that human rights of people in care homes are less important and enforceable than the human rights of patients in hospitals. It recommended that the care standards regulations be amended to require care homes respect residents’ human rights in accordance with the HRA. It further recommended that when the health and social care inspectorates are merged (Health Commission, CSCI and the Mental Health Act Commission), the standards applicable to quality of care and other issues engaging the human rights of service users should be the same for both NHS Trusts and care homes. It suggested the Healthcare Commission should not view the HRA as “one of a large number of sets of regulations” to which it is subject, but regard the framework created by the HRA as over-arching and fundamental to all its work.

The Committee was not convinced that the National Institute for Health and Clinical Excellence (NICE) was fully taking human rights into account in their decision-making. It recommended that NICE demonstrates in all relevant publications in its decisions on clinical practice, that it has expressly taken into account the Convention rights of any patients who may be affected, as required by the HRA.

The role of staff in protecting human rights
It was noted that human rights training should have been provided throughout hospitals, care homes and other public service organisations from 2000 when the HRA was introduced. Predictably the Committee strongly recommended that all healthcare staff (both clinical and non-clinical) receive targeted and regular training in human rights principles and how they apply to their day to day work (it suggests the CEHR monitors the extent to which hospitals and care homes include human rights principles in staff training). The BGS “forcefully” pointed out the failure to provide staff with appropriate skills and training but also observed that when it occurred specific human rights training enabled staff to “look at things differently and stopped thinking just about protecting themselves but about care from the resident’s as well as the families’ perspective”.

Interestingly the Report noted the absence of human rights principles in the criteria for professional training (e.g. geriatric trainees curriculum) or in codes of practice for health professionals (e.g. the GMC & UKCC) or social care workers.

According to Age Concern (Rights for Real, May 2006), 500,000 older people are subject to abuse at any one time in the UK (although not all in healthcare). Almost four-fifths of the abuse is perpetrated against people over the age of 70 and 16% affects people over 90 (Help The Aged, Hidden Voices, September 2004). The majority of abusers are related to their victim (46%), and the next highest category of abusers is paid workers (34%). In 2004, the House of Commons Health Committee (Elder Abuse, Second Report of Session 2003-04) found that the abuse of older people was “a hidden, and often ignored, problem in society, and was a violation of human rights”.

The Committee acknowledged it did not wish to increase the burdens on healthcare staff but wanted to address the reporting of suspected abuse. It recommended the Government include a requirement by both hospitals and care homes to have regulations and policy requiring all healthcare workers to report abuse or suspected abuse, with protection for whistle-blowing and confidentiality.

Empowering older people
The Committee was “alarmed and concerned” as to how little protection care home residents had against eviction, as compared to ordinary tenants in rented accommodation who have the protection of housing legislation. It suggested this anomaly be rectified as a matter of urgency.

There was evidence to suggest that older people would greatly benefit from the assistance of independent advocates “in order to secure their human rights on the same basis as the rest of society”. The Committee welcomed the Minister’s support for this and recommended the DoH provide sufficient independent advocacy services for older people, with priority being given to those with mental health problems or who are unable to communicate in English.

There was alarm from by the Committee that the Minister was unable to guarantee the newly merged inspectorate would be able to investigate individual complaints at the appropriate point in the process. It was convinced that complaints needed to be investigated by an independent third party (it recommended the new inspectorate be empowered), and not by the organisation against which the complaint is made and where the older person may continue to live.

The Commission noted a dual approach was needed: firstly, older people (and carers and the public as a whole) need accessible, meaningful and appropriately presented information about their human rights (particularly on entry to a care home or hospital); and secondly, institutions need to mainstream and embed human rights within their work.

Relevant Articles of the HRA 1998
The report expressed the views of many witnesses about the continuing poor treatment of older people in healthcare. The principle concerns were demonstrated in the report by way of individual narratives and real life examples and related to:

• Malnutrition and dehydration (Articles 2, 3 & 8 ECHR)
• Abuse and rough treatment (Articles 3 & 8)
• Lack of privacy in mixed wards (Article 8)
• Lack of dignity for personal care; insufficient attention to confidentiality (Article 8)
• Neglect, carelessness and poor hygiene (Articles 3 & 8)
• Inappropriate medication and use of physical restraint (Articles 3 & 8)
• Inadequate assessment of a person’s needs (Articles 2, 3 & 8)
• Too hasty discharge from hospital (Article 8)
• Discriminatory treatment of patients and care home residents on grounds of age, disability and race (Article 14)
• Eviction from care homes (Article 8).

Martin Curtice
Consultant in Old Age Psychiatry
Queen Elizabeth Psychiatric Hospital
Birmingham

BGS Newsletter, October 2007
Issue 13 ISSN 1748-6343 13