Human rights in care

January 5, 2015

Man holding cardboard paper with HUMAN RIGHTS titleA new focus on human rights

Human rights seem to be well served in Scotland.

We have the Scottish Human Rights Commission established in 2008, which promotes and protects human rights for everyone in Scotland. It is an independent public body, accountable to the people of Scotland through the Scottish Parliament.

There is the Equality and Human Rights Commission (EHRC) nationally for the UK, including Scotland, and there is a Scottish Commissioner for Children and Young People designed to promote and safeguard the rights of children and young people in Scotland.

There is also a Scottish National Action Plan (SNAP) on human rights, which published a scoping report in December 2013 called ‘Getting it Right? Human Rights in Scotland’. This covers all aspects of life affected by rights, including the health and care aspects of services we all use. The action plan includes:

  • The integration of health and social care, as well as work on health inequalities, and the funding of care.
  • Putting human rights at the heart of the principles which guide delivery of health and care services in Scotland, as part of the review of the National Care Standards.
  • A human rights-based approach to independent living, including national strategies for learning disabilities and Self-directed Support.

SNAP will report on progress regularly to the Scottish Parliament, and is due to run until December 2017. Of most interest to the care sector is the emphasis, in the current review of the National Care Standards, on human rights. Although consultation will still be ongoing next year, it appears that the human rights basis for the revised standards will become a reality. This has a major impact for care services and for care practice. Since the National Care Standards are the basis for regulating care services, then there will be pressure where needed to ensure that policy and practice in providing care and support is consistent with human rights. This is highly commendable, and will serve to strengthen the overall human rights agenda in society, as well as having promise to open up and strengthen the drive to ensure privacy, dignity and safety in all aspects of providing care.

The focus on the learning disability strategy and self-directed support in Scotland is timely and very welcome. The current strategy on learning disability (‘Keys to Life’) is a ten year strategy running from 2013. It follows on from, and builds on, the principles of ‘The same as you?’, the original review of services for people with a learning disability, published in 2000.

The focus on human rights by SNAP in this strategy will hopefully alleviate the national problems in learning disability services, highlighted by the Winterbourne scandal in 2011 and subsequent reporting on lack of improvement in services, as highlighted in the Bubb report of this year.

Enforcing rights

Previous experience of working with the rights of young people in care has led me to the view that rights need to be legally enforceable, and to be supported by strong, effective and accessible advocacy services.

These points emerge from the fact that rights usually figure when there is an imbalance of power, between the vulnerable and marginalised of society on the one hand, and the powerful and the privileged on the other. The most vulnerable people in our society are those who are least likely to be able to pursue their rights when these are questioned. So a society which takes seriously rights claims must recognise this inherent imbalance, and correct it by supplying strong, accessible advocacy support, backed up by specific legal remedies and sanctions for failure to implement human rights. Otherwise I fear that giving people rights is simply to recognise their vulnerability formally without being able to overcome the vulnerability.

There is also a background condition which I feel is equally important, we are all responsible for human rights. Advocacy and legal provision can only do so much, but rights are best served where they are universally known and respected by everyone in society, and I think we are still some way from having this condition met. The activity of the commissions mentioned above, and national action plans should go some way to have rights as a prominent feature in our national awareness.

With regard to legal sanctions and remedies, there has been some progress in recent years, such as the legal recognition of discrimination on grounds of age, sex, disability and other categories. But much needs to be done. In its paper ‘Monitoring and promoting UN treaties’, the Equality and Human Rights Commission pointed out the almost total failure to incorporate the provisions of various international treaties on human rights into domestic UK law. This is despite the country having ratified these treaties. So potential abuse of many human rights remains without a clear legal remedy being applicable.

With regard to advocacy, the situation is equally depressing. Although mental health legislation and other legislation and regulations seem to entail there should be statutory access to independent advocacy, such services are often very difficult to locate and to access. There can also be questions about the effectiveness of advocacy, and whether it can be truly independent. It is often subsidised and/or provided by a public or voluntary body, rather than being provided as a statutory, additional service to support other care services.

An example

I want to close by describing a real situation I have come across recently, and sadly it is not an isolated situation.

Two people were receiving community support to live independently together in the community after having been discharged many years ago from an inappropriate placement in long term hospital care. While having profound disabilities, the people were well supported and lived a happy and active life. However, as they approached national retirement age, the policy of the funding authority was to transfer responsibility for their placements to the older people’s care section. As a result, this section being less well funded that the adult section, the people and their supporters were contacted to say that the care and support would now be best provided in a care home. Thankfully, the supporting service agitated and campaigned admirably against this measure, and it was withdrawn.

However, the irony of the situation and the implication for rights are profound. If the service had not taken upon itself to advocate for the people, then the move may have gone through. This would have meant people who had been ‘rescued’ from institutional care being forced back to an institutional setting, because of the policies of the funding authority.

To me, this shows that rights are not the whole story, the vulnerable need to be empowered by society with clear legal remedies, and our policies, funding of services, and advocacy support all need to be continuously examined for their impact on human rights. Bills of rights are not enough, nor are the good intentions of the countries which claim to ratify these treaties.

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Tony Clarke

Scottish Care Inspectorate Specialist


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