The Joint Committee on Human Rights appointed by the House of Lords and the House of Commons recently published a report setting out the findings of its inquiry into protecting human rights in care settings, which aims to ‘shed a light on the human rights most at risk in care settings’ and looks at what can be done to better protect those rights.
The inquiry focused on the protection of human rights in four main areas - the provision of care, visiting arrangements in care settings, complaints processes and the coverage of the protections of the Human Rights Act.
In this briefing, we look at the report’s main findings and recommendations and the potential impact of these for the care sector.
Provision of care
Inadequate or inappropriate care provision may amount to a breach of Article 2 (right to life) and/or Article 3 (right not to be subjected to inhuman or degrading treatment) of the European Convention on Human Rights (ECHR), which is incorporated into UK law through the Human Rights Act (HRA).
For example, we regularly see claims for damages brought by care users and/or concerns raised by regulators (usually CQC) in relation to allegations of neglect and abuse, which potentially give rise to violations of Article 3 and, when such conduct results in a fatality, Article 2.
DNACPR notices
In order to protect care users’ Article 2 right to life, the inquiry report highlights the importance of ensuring that ‘Do Not Attempt Cardio-Pulmonary Resuscitation’ notices are never applied in a blanket fashion to groups of individuals, as well as emphasising that these relate only to decisions about cardio-pulmonary resuscitation and there must be no ‘read-across’ to other forms of treatment or medical response.
The report calls on the government to work with providers and other stakeholders to take steps to raise awareness and prevent any inappropriate use of DNACPR notices, as well as looking to the CQC to continue to seek assurances from providers that care users are placed at the centre of any discussions and decisions relating to DNACPR notices in a way that protects their human rights.
Restrictive practices
The report also looks at use of restrictive practices in care settings, such as chemical or physical restraint or seclusion, which can amount to a breach of care users’ Article 3 (inhuman and degrading treatment) and/or Article 5 (liberty) rights.
On this point, the report calls on the government to work with the CQC and other relevant bodies to review existing guidelines to ensure that providers only have recourse to restrictive practices when absolutely necessary. However, given the connection highlighted in the report between unsuitable care settings (in particular for those with autism and/or learning disabilities) and use of restrictive practices, it may be that reviewing guidelines around restrictive practices will have limited practical effect until the resource issues around availability of specialist community placements can be resolved.
Deprivation of Liberty Safeguards (DoLS)
The report also looks at use of the Deprivation of Liberty Safeguards (DoLS) and their importance in protecting care users’ Article 5 (liberty) rights. The report flags up the issue of limited access to legal aid for those wishing to challenge their deprivation of liberty in court, and recommends that non-means-tested legal aid should be available for all eligible people subject to a deprivation of liberty, regardless of whether there is an authorisation in place. Concerns about the well-known issues with delays in processing DoLS applications are also raised in the report, which expresses the hope that the replacement system - the Liberty Protection Safeguards (LPS) - will not ‘repeat the failings of the DoLS framework’ in this regard. It also calls on the government to set a clear timetable for rollout of the LPS system, as there is currently no definite start date for this.
We see many claims from care users where the correct procedures have not been followed leading to an unlawful deprivation of liberty, although often this gives rise to a technical breach only, in circumstances where a deprivation would have occurred in any event if the correct procedure had been followed. We anticipate an increase in these types of claims with the introduction of LPS whilst everyone gets to grips with the new requirements. Also, if there is a widening of access to legal aid for those seeking to challenge deprivations of liberty as envisaged in the report, this could further increase the number of claims made.
Visiting arrangements
The report underlines the importance of visiting arrangements in care settings giving adequate protection for people’s right to private and family life under Article 8 ECHR and suggests that visiting policies in some settings may still be more restrictive than current guidance recommends.
To address this, the report calls on the government to legislate against blanket bans on visiting, by introducing legislation to secure the right for care users to nominate one or more individuals to visit and provide support or care in all circumstances, subject to the same infection control rules as care staff and to give the CQC the power to require care settings to report live data on levels of visiting and restrictions.
Complaints processes
The report also calls for a less confusing, more effective complaints system, with the roles of the CQC, the Local Government and Social Care Ombudsman (LGSCO) and the Parliamentary and Health Service Ombudsman (PHSO) clarified.
We regularly see cases where care users and their relatives have been frustrated by the complaints process and any improvements that help support effective resolution of complaints at any early stage would be very welcome.
Coverage of Human Rights Act protections
The Joint Committee highlights that the HRA ‘does not apply equally to all those in care settings’, in that it does not directly protect those in the private sector who are self-funded or whose care is provided under NHS continuing healthcare arrangements. The report is calling for the government to consult on extending the protections provided by the HRA to all those receiving care in the private sector.
If that happened, we could see a sharp rise in Human Rights Act claims against private sector providers. Providers should be aware that damages under the HRA are rarely indemnified by insurers and so claims would be at the provider’s own cost.
Staff training
The report also highlights the importance of human rights training in care settings and calls for the CQC to work with all registered providers to ensure that their staff receive training that goes beyond just stating rights and obligations and effectively demonstrates the relevance and use of human rights in making decisions about care and treatment.
The future?
Since this inquiry was launched, the government has introduced the ‘Bill of Rights’ Bill, which the Joint Committee suggests could negatively impact on the protection afforded to care users because the positive obligations on public bodies to protect rights would be weakened. On this issue, the report invites the government to consider very carefully the impact of the Bill on those in care settings and suggests that the Department of Health and Social Care should publish an analysis of this.
It is clear that the report covers a wide range of issues which are each highly pertinent and have been the subject of increased public attention and regulatory scrutiny in recent years. Given the wider pressures and ongoing reforms impacting the health and social care sector (alongside the broader less settled political and economic landscape) it will be interesting to see which, if any, of the report’s recommendations will be actioned and what impact they will have on the safety and quality of care provided. We will continue to monitor next steps arising from the report and provide further updates where relevant.
