Email your comments

The British Institute of Human Rights (BIHR) have published a second edition to their ‘Changing Lives’ document (BIHR, 2008), celebrating the 60th anniversary of the Human Rights Act 1998 (HRA) and following on from the active and practical success of the first report in 2006.

The BIHR is a human rights organisation set up to contest inequality and injustice in everyday life in the UK, by giving people recourse to human rights principles to improve their own lives; supporting individuals in securing optimal services from public authorities; and as a tool for organisations to develop better public policy and practice.

The ‘Changing Lives’ report highlights that: “…individuals have the right to be treated with respect, dignity and fairness.” And it aims to “…promote a culture of respect for human rights - making human rights a feature of everyday life,” noting that, “The courts are a last resort.”

‘Changing lives’
The first edition of Changing Lives documented the positive changes the HRA was making to individuals’ lives. The second edition highlights the evolving use of the HRA as it begins to bed down and as human rights become integrated into the culture of our society. The second report adds new case studies alongside the originals which continue to illustrate the value of the HRA, its ideas and language. They demonstrate that “ordinary people going about their day-to-day lives are benefiting from the law, without resorting to the law.”

The report notes: “…the Human Rights Act is associated with technical legal arguments or perceived to be limited to high profile – and sometimes spurious – claims by celebrities and criminals.” The report tries to offset this perception by painting a different picture, highlighting how individuals and groups are using, not only human rights law, but also the language and ideas of human rights to dispute sub-standard conduct and negotiate improvements to services provided by public bodies.

The case studies depicted in this report are not intended as legal precedents, but rather as an inspiration for the practical application of human rights by individuals and organisations alike. The cases comprise an array of situations relevant to people of all ages, victims of domestic violence, parents, disabled people, those with enduring mental illness, asylum seekers and others facing discrimination or exclusion.

The cases have been organised into a range of working categories for ease of reference. All categories potentially impact on older people and older people with mental illness.

1. Protecting human dignity
Older woman strapped into her wheelchair against her wishes
A consultant encountered an older woman on a hospital ward in London, who was crying out in distress. It became apparent that the lady was distressed, having been strapped into her wheelchair by the nursing staff. The nursing staff explained that they had not wanted the lady to walk around in light of her high risk of falling and sustaining an injury. Whilst understanding their concerns, the consultant suggested their actions were inappropriate and could be considered degrading (Article 3 HRA) when set against the lady’s considerable distress. She was unstrapped and subsequent physiotherapy improved her mobility.

Other cases used as examples of ‘Protecting human dignity’:

• An older woman being left naked on a mixed ward by workers training her to dress herself as part of her rehabilitation programme.
• Older people being forced to wear incontinence pads, despite being continent, because staff do not have time to take them to the toilet.
• Staff refusing to clean up a patient’s bodily waste.

The concept of human dignity, highlighted effectively by these cases, is central to the HRA. Dignity is protected by specific human rights, including Article 3 – the prohibition of inhuman and degrading treatment and Article 8 – the right to respect for private life.

2. Challenging discrimination

• Older people are denied medical treatment on account of their age.
• A woman is refused a volunteer position at a school because she is a transgender person.
• A non-English speaker is sectioned without an interpreter.

These cases all highlight the importance of equality as a fundamental human right. The HRA dictates that individuals cannot be discriminated against ‘in the enjoyment of their Convention rights’. This human rights prohibition of discrimination extends beyond the Commission for Equality and Human Rights ‘six equality strands’ of sex, race, disability, age, religion or belief and sexual orientation. It also includes: language, marital status, property, illegitimacy and imprisonment.

Thus the HRA effectively ‘plugs gaps’ in other anti-discrimination laws.

3. Promoting participation

• Older people are denied the opportunity to go on day trips by a day care centre because they are ‘too frail’ or ‘too heavy’ despite their desire to participate.
• A woman with a history of self-harm was placed under 24-hour supervision, which caused her great anguish. Discussion of the terms of her supervision and the allowance for limited privacy helped to alleviate her distress and aid her understanding of the observation process as a protective measure.

The HRA recognises that opportunity to develop one’s personality through participation in the life of the community is a principal feature of the right to respect for private life (Article 8). Thus, under the direction of the HRA, unreasonable barriers to accessing essential economic, social, cultural and recreational activities can be challenged.

3. Challenging brutality

• An older person being slapped by a staff member after refusing tea.
• A mental health patient being restrained in a painful manner, unlike his previous experiences, so that he interprets the painful restraint as punishment and subsequently requires medical attention.

‘The prohibition of inhuman and degrading treatment (Article 3) and the right to respect for private life, including the right to physical and psychological integrity (Article 8), can be used to challenge physical and emotional abuse.’ Thus the HRA can be used to challenge any breach of prohibition of inhuman or degrading treatment. In select cases, where the degree of ‘brutality’ is required, yet qualitative and perceptual in nature, as in the above case in which the patient required restraint, the HRA can be used to improve standards.

5. Taking positive steps to protect human rights

• An authority becomes aware that an older woman living with her daughter is sometimes punished by being left outside on a chair overnight and is too afraid to inform her daughter when she is unwell.
• A residential care home became aware that a male resident is trading cigarettes for sex with a female resident with established and enduring mental illness.

Public authorities are obliged under the HRA to protect individuals from inhuman and degrading treatment (Article 3) and threats to their lives (Article 2 – the right to life). Thus authorities must actively seek out those believed to be at risk to ensure their protection from harm. Authorities must also promote the right to respect for private and family life (Article 8) in certain circumstances.

6. Using human rights where resources are an issue
Older woman to be moved into a care home against her wishes

An older woman was staying in hospital following several strokes. She suffered with a range of trauma related mental health problems, having been imprisoned as a Japanese prisoner of war during the Second World War. The hospital sought to discharge her to a residential care home despite her wishes to return to her own home – the problem was providing funding to support her care at home. Her advocate was concerned that being institutionalised would lead to a regression in mental health and therefore, having received BIHR training, he used the ‘human rights language’ to argue her case. Funding was eventually secured.

Older couple split up by local authority after 65 years of marriage
A husband and wife had lived together for 65 years. He was unable to walk unaided and relied on his wife to help him move around. She was blind and relied on her husband as her eyes – “they were a partnership.” Unfortunately the husband fell ill and had to be moved to a residential care home, but when his wife asked to join him, she was told that she did not fit the criteria. Through a public campaign by the family, supported by the media and various human rights experts, it was deemed that the local authority had breached the couple’s right to respect for family life (Article 8). Thus the local authority agreed to revise their decision, granting the wife a subsidised placement at the care home.

The terminology of Article 8, the right to respect for private and family life, is important, in that it is not an absolute human right – it is a qualified right. Thus it can be interfered with in order to consider the rights of other individuals and/or the wider community (this may include financial grounds). However for any interference to be justified, it must be lawful, necessary and proportionate – a proportionate response is one that is appropriate and not excessive in the circumstances. Other qualified rights include the right to freedom of thought, conscience, religion (Article 9) and expression (Article 10).

7. Using human rights to challenge blanket policies
Challenging the blanket use of tilt-back chairs in a nursing home

An NHS nursing home had a policy of placing all residents in tilt-back chairs regardless of their level of mobility. This severely hampered their ability to make choices concerning everyday activities, as well as their capacity to feed themselves and use the bathroom. A consultant pointed out that by not considering the individual mobility needs of residents, there was a breach of human rights principles – principally attention to the right to respect for private life (Article 8), which highlights the importance of dignity and autonomy and the right not to be treated in a degrading manner (Article 3). Subsequently residents who could mobilise were encouraged to do so.
Other case examples:

• A resident in a care home had attempted suicide several times by swallowing large quantities of toilet roll, leading to a blanket policy requiring all residents to keep the door ajar while using the toilet so that carers could dispense toilet paper through the door.
• A blanket policy in a mental health care home stating that patient should not be woken up at mealtimes resulted in heavily medicated patients going without food for long periods of time.

The HRA stipulates that decision makers should adequately assess the full circumstances of each case before reaching a verdict. This emphasises the priority placed by human rights on person-centered decision-making and the potential consequences of applying blanket policies that are disproportionate in individual cases – thus deemed a breach of human rights.

8. Protecting human rights in the context of contracted out services
Residential care home refuses to bathe larger woman
A larger woman in residential care had not been showered or bathed for many weeks. The care home, with agreement from the local authority that funded her, provided her with ‘strip’ wash so that staff did not have to lift her. This was very distressing to the woman, especially in warmer months when she perspired a lot. Having received BIHR training, her advocate contacted the care home and local authority, invoking her right not to be treated in an inhuman and degrading manner. Within a matter of days, a new occupational therapist determined that a hoist could be used to help her bathe and shower according to her wishes.

The HRA imposes an obligation to protect human rights on public authorities as well as subsidiary bodies performing contracted-out ‘functions of a public nature’. The wide spectrum of the HRA ensures that subsidiary bodies assume responsibility for human rights, while the public authorities also maintain their human rights obligations. Efforts to protect human rights should be integral to any commissioning and contract monitoring process.

7. Using human rights to support family and private life

• A couple with learning disabilities who live in residential care homes not being allowed to marry.
• Unreasonable restrictions being placed on family visits in hospitals and residential care homes.

The report does not mention cases specific to older people or older people with mental health problems. However aforementioned cases certainly apply in marking the right to respect for private and family life. The HRA stipulates that this is a qualified right and is therefore subject to interference, which must be justified, lawful, necessary and proportionate.

10. Supporting public sector staff to take individual needs into account in decision-making
Consultant convinces staff to respect routine of an 89-year-old with dementia who shouted when left in bed till 11 a.m.

An 89-year-old woman with dementia was perceived by staff in a NHS nursing home to be very “difficult”. Her consultant geriatrician was very concerned by the situation, and wanted to find out why she was so hostile in the mornings – her dementia made this difficult. Collateral history from her daughter revealed that the lady had worked as a cleaner her entire life, with a busy schedule starting at 5am every morning. The consultant subsequently explained to staff that in order to deliver services in accordance with human rights, the lady’s individual need had to be considered. This implied her preferred routine should be respected as much as possible, in accordance with her right to respect for private life (Article 8). Having initiated this new waking schedule, the lady’s shouting and difficult behavior ceased.

The BIHR has found that through their training of public authorities and providers of public services, the concept of human rights can be a very useful tool in assisting the decision making process and can lead to an improved outcome for individual service users: “Human rights can provide a useful framework within which conflicting rights can be balanced and the individual needs of service users can be taken into account.”

11. Fair procedures

• People with dementia in hospitals as informal patients being told that the exit is somewhere else in order to prevent them from leaving.
• Informal patients in hospitals having their windows and/or doors locked to prevent them from leaving.

There are several articles in the HRA to ensure public bodies have fair procedures for dealing with individuals. These include the right to a fair and public hearing (Article 6) and the right to liberty (Article 5).

The right to fair and public hearing refers to forensic offences or court hearings. This right also applies to public body decision-making processes when there is significant impact on a person’s civil rights, such as property law, family law or employment law.

The right to liberty and security can only be restricted by detaining a person in certain circumstances, as proposed by Article 5. In certain circumstances, people with mental health problems can be detained, but this is a strict procedure authorised by the law under the Mental Health Act. The recent Mental Capacity Act 2005 addition of the Deprivation of Liberty Safeguards were as a response to the violation of Article 5 in the pivotal 2004 judgment of HL v. UK from the European Court of Human Rights.

Key learning points

1. The language and ideas of human rights have a dynamic life beyond the courtroom.
2. Human rights have a wide application, addressing people’s lived and varied experiences in a range of circumstances.
3. Human rights offer a vision of equality which can protect people from ill-treatment by ‘plugging gaps’ in our anti-discrimination framework.
4. Human rights provide a framework for balancing competing human rights.
5. The language and ideas of human rights can be used by public sector organisations and staff to consider the needs of individual service users.
6. There is an emerging culture of human rights.

Future use of the HRA
The case studies relating to older people outlined above provide a snapshot of continued and evolving use of the principles, language and ideas of human rights. Many of these have been acquired from outside of BIHR’s own evidence base, pointing to a general and evolving structure of respect for human rights. A recent joint publication between Age Concern and the BIHR (2009) has further specifically analysed the vital issue older people and human rights.

The language and ideas of human rights have had a practical and substantial impact on the lives of many individuals in a variety of situations. The publication of the first edition of ‘Changing Lives’ has had a positive impact on awareness in the public arena, leading to the establishment of the Equality and Human Rights Commission to promote and protect human rights in Britain.

‘Changing Lives’ has also shown the positive impact of the HRA in many settings, thus relegating the idea of abandoning the HRA. In fact, a more absolute integration of the HRA into the public sector should help improve service quality and ensure that public authorities satisfy their positive obligations under it.

Nagy Rizkalla
Martin Curtice
Birmingham

References

Age Concern & BIHR (2009) Older People and Human Rights. Research and Mapping Report. March 2009

British Institute of Human Rights (2008) The Human Rights Act – Changing Lives. Second Edition

HL v. UK (2004)

BGS Newsletter, September 2009
Issue 23 ISSN 1748-634000 23