National Care Association Conference Speech - Coventry November 2007
" As much as anything else, Human Rights are about the standard of care we should expect in residential institutions for the elderly, the young and mentally ill."
Good Afternoon. I am delighted to be here to with today.
I have been asked to speak to you today about importance of human rights - to be if you like counsel for the defence at a time in which sadly human rights get a very bad press.
I want to argue that despite, what you might have read and heard, human rights belong to us all, can and are improving all our lives and that the Human Rights Act is playing a valuable role in bringing these rights home to us.
There is no doubt that human rights is an issue rarely out of the news nowadays. Only last week, for example, the Prime Minister launched a consultation process on a Bill of Rights which could help spell out more clearly both our rights and our responsibilities to each other.
It is a process I wholeheartedly welcome because it is an opportunity for all sections of society to engage in a dialogue about what human rights are, their value and importance.
I fear this is needed more than ever at the moment. And that’s partly because we rarely get the full story.
Let me give just give you a couple of recent examples. There was the case of a man trying to evade arrest in Gloucestershire who staged a roof-top protest. When he was sent up some Kentucky Fried Chicken by the police, it was immediately claimed they had to do this - with a supportive quote from the familiar unnamed source - to ensure his human rights were not breached.
Now I am pretty well acquainted with the European Convention. And I can assure you that nowhere does it say how many buckets of KFC a fugitive should be given.
The decision to send him food and drink was, in fact, nothing to do with human rights and everything to do with operational judgement of the police that there was a better chance of getting him down quickly if they stayed on good terms - and they were right.
Or take another case which did involve a court case involving someone claiming their human rights were breached.
Dennis Nilsen is a serial killer who has, rightly, been gaoled for life. In an application for judicial review, he sought access to homosexual pornography, claiming that the Prisoner Governor’s refusal to allow him such access constituted ‘inhuman or degrading treatment’ contrary to Article 3 of the European Convention, or in the alternative was discrimination against gay men under Article 14.
Understandably, it got huge publicity in the media. What hardly got a mention in the media was the fact that Nilsen’s application was refused by a single judge at the permission stage. This means that he wasn’t even able to seek judicial review, because he hadn’t established that he had an arguable case. In colloquial terms, his case was laughed out of court.
What characterises both these examples is that despite the accusations made in connection with them about human rights and human rights legislation, the actual resolution of them was a matter of common sense.
The risk of reporting cases in such distorted terms whilst largely ignoring those where rights helped ordinary and often vulnerable individuals, is that many people will come to see rights as irrelevant to them.
Even worse, the danger is that such controversies may make people feel that human rights are actually harmful.
Even those who support human rights often see them as solely concerned with repressive regimes or, if they see them as relevant to this country at all, about offering safeguards against some grave injustice.
But rights are not just about political prisoners in other countries or torture and imprisonment.
They are about each and everyone one of us as we go about our lives. They are violated by gangs on the streets who intimidate their local community.
They give us protection against bullying at work or against discrimination in health treatment if we are elderly.
They guarantee our children a proper education. They are about, and this is particularly relevant to this conference, the standard of care we should expect in residential institutions for the elderly, the young and mentally ill.
So I want to examine what human rights are, and crucially what they are not, where they come from and why they are important for each and every one of us and in particular how they relate to the rights and responsibilities of both those in care and those helping to provide that care.
The origin of the concept of human rights is not, you may be glad to hear, one for this speech - otherwise we might all have to cancel dinner.
However, it is necessary to briefly see their origins to appreciate their application today.
There are some who argue that the application of human rights is somehow alien to the fabric, nature and character of the UK. This shows a sad lack of knowledge of our history. From Magna Carta - which began to set down the right to freedom - to the Human Rights Act stretches a golden thread of rights in Britain. We have just celebrated, for example, the 200th anniversary of our country’s role in the abolition of slave trade - a proud role not just here at home but across the world.
Slowly these rights became established - accepted by the courts, by Government and by people. By the last century, the right to freedom, family life, association and privacy, among others, were all part of the fabric of our country.
Sadly, this was not the case everywhere. And it was in a reaction of he utter horrors of the Second World War- with Britain again in the lead - that the world came together to set down minimum standards of treatment which everyone - no matter where they lived - deserved from their Government and the responsibility of states to ensure these rights were protected.
This came to be known the Universal Declaration on Human Rights, agreed by every member of the then fledgling United Nations.
Identifying these fundamental individual rights was seen as protection against abuse of power. And it was also underlined that this all stems from our intrinsic human dignity - that irrespective of our differences, of who we are, where we come from, what we have done - there is a basic level of respect and treatment that we are entitled to simply because we are human.
These rights include the freedom to have a family; freedom to enjoy our property; freedom to meet and discuss ideas; freedom to hold peaceful protests; freedom to think and believe what we as individuals decide is right; freedom to practice religion or not; equal treatment; freedom from the worst abuses, such as torture or slavery and guarantees against being deprived of our liberty without a fair process established in law.
And it was also underlined that these rights stem from our intrinsic human dignity - that irrespective of our differences, where we come from, what we have done or are there is a basic level of respect and treatment that we are entitled to simply because we are human.
No one would dispute the importance and validity of these rights. They give expression to the values of our society. They are common sense and they are common to us all.
In Europe, such was the determination to ensure we never slipped back to the dark days of the Second World War, we went further and came together to establish a human rights document with teeth, the European Convention on Human Rights and Fundamental Freedoms, co-written by British lawyers as well as jurists from across Europe - and the World’s first specialised international human rights court, the European Court of Human Rights. This is an institution which for the first time in history allowed individuals to hold the State directly accountable before an international tribunal for how it had treated its own citizens.
It was Winston Churchill and not any more recent Prime Minister as you might believe from recent media whose wholehearted advocacy of the idea ensured that Britain was one of the leading countries in the drafting and signing of the Convention.
For over 50 years, British citizens have been protected by the rights guaranteed under the European Convention, rights defined to protect against the excesses of the State. With the Human Rights Act 1998, these rights were “brought home” by enabling individuals to bring their claims in UK courts rather than going to the European Court in Strasbourg. By adopting the Human Rights Act the British government gave British citizens the opportunity to benefit from the rights protected by the Convention in British courts - a right that had long been enjoyed in almost all other European countries.
Whatever complaints there are about these rights and how the courts are enforcing them, no one can say they are new or alien. They are not. It also seems strange that some of those critics complaining most loudly about bringing power back from Europe to this country would in every other circumstance be applauding it.
Nor is it true to suggest that human rights are limitless. No matter how fundamental you and I and everyone else may see them, they are very rarely absolute.
In the first place, they can’t be absolute simply because these rights frequently conflict with those of other individuals and of society as a whole.
Your right to freedom of expression might conflict, for example, with your right to privacy.
And secondly, from the very beginning, it was accepted that these rights can be curtailed by Government not just in times of national emergency but everyday.
Those that drew up these rights half a century ago knew they were making judgements on competing interests and had to strike a balance between the individual and the collective interests.
Flexibility not precision is the key.
They also understood that human rights are not a one-way street but that they carry obligations as well.
Consequently all human rights documents - national and international - in addition to recognising individual rights also recognise individual responsibility and the need for the State representing the collective interest to take sensible action.
There is of course some truth in the allegation that human rights protect the worst people in society. As I have already mentioned we have rights because we are human no matter what we have done. It is only when the least favoured groups in our society are able to claim their rights that we can be confident that we too can claim ours. Human rights are an expression of our best impulses so as to guard us against our worst; principles to be applied without fear or favour no matter how difficult or testing times may be.
Some of you may think that as a lawyer specialising in human rights law, I would say this. You may be thinking what difference does this make to all of us?
Well, it makes a real difference. One of the main ideas behind the Human Rights Act was to create a “human rights culture” so that these rights were automatically taken into consideration when shaping social policy. It is about making a better country for people to live in: reconnecting people and politics, improving public services, getting more respect into society, more respect for one for another’s basic human dignity and promoting basic values we can all share.
It’s about making rights an intrinsic part of decision-making and planning and enabling us to balance the rights of the individual against those of other individuals and society as a whole. This is important in all sectors of society but it is particularly so in the care sector.
Some of the most vulnerable in society be they children, the elderly or those with physical or mental impairments are looked after by the care sector and the manner in which decisions are made can have a profound impact upon the individuals involved.
This usually does not involve the courts. Indeed the whole point of the thinking behind the Human Rights Act is to try and keep the courts out of it by ensuring rights and responsibilities are taken into account in decision-making in a way which is beneficial to all involved.
I know how hard you strive to look after those in your care. But there are inevitably times when standards are not as high as you might want across the industry. Older people are unfortunately sometimes neglected. Relatives are sometimes told they cannot visit because they ask awkward questions. Married couples are told that, against their wishes, they cannot stay in the same care home. These are usually seen as examples of poor practice but they are human rights issues. The most effective way to achieve respect and protect the rights and interests of all, that everybody wants to see, is not through the courts but through proper training and raising human rights awareness and integrating it into our decision making processes.
Where the Courts have become involved they have time and again sought to strike a careful balance between the interests of all involved. As I noted earlier, despite what is often reported, the Courts do not simply seek to protect the interests of some with a total disregard to the rights of others. The Courts carefully look at the rights and obligations of all and make their decisions accordingly.
For example in a case from 2003 a decision to close a care home managed by East Sussex County Council was challenged on human rights grounds. It was in part argued by some of the residents that this violated their rights: specifically, the right to life pursuant to Article 2 of the European Convention; the right not to be subjected to degrading treatment pursuant to Article 3; and the right to respect for their home pursuant to Article 8 of the Convention. With regard to Article 2 the Court accepted the extended the meaning of that provision but did not feel that a real and substantial risk to the applicants was established and this part of the claim was quickly dismissed. The Court also did not feel that the decision to close the home was degrading to the applicants as claimed. In the context of the claim both Articles 2 and 3 are absolute rights but the Court did not feel that a case had been made. With regard to Article 8 and respect for an individual’s home the Court had to balance the interests of the residents and those of the Council. In doing so the Court gave due weight to the financial interests of the Council and how it was seeking to find the most effective way of fulfilling its various statutory responsibilities within existing financial constraints. On that basis it found that the interests and rights of the individuals did not outweigh those of the Council.
In another case, however, where a decision was taken by a Council to close a residential home without consulting the residents, the High Court found that this did amount to a violation of their right to a home under Article 8 of the European Convention. It was not the decision itself that violated their rights and the Court recognised that such a decision could be justified but the failure to consider the residents’ interests that was crucial. A proper process of consultation and consideration of the residents’ interests in the decision making process was essential.
These cases, however, involved care homes run and owned by councils. As you are all aware, nine out of ten care homes in the UK are now privately run and it is such homes that many of you are involved with. This does not mean that human rights considerations are not relevant to such homes, they clearly are.
For example, a man with learning disabilities in a privately run residential care home had a history of starting fires. Although this had not occurred for over two years, care home staff were instructed by his psychiatrist to routinely search him each time he returned from being out while unsupervised to ensure he did not have on him any matches or a lighter. This practice was challenged by a health commissioner for the NHS Primary Care Trust which had contracted the care home to provide the man with residential care. The health commissioner invoked the man’s right to respect for private life (which is protected by Article 8 of the European Convention) to argue successfully that the blanket policy should be replaced with a proper decision-making process. The new decision-making process was based on an ongoing risk assessment and was communicated to the man to ensure he understood why, when, how and by whom he would be searched and when the practice would be reviewed. It was agreed that routine searching would cease after six months if no matches or lighter were found on the man and if he was not involved in any fire-related incidents. This solution not only respected the rights of the man involved but it was also effective, proportionate to the risk he posed and also avoided potential confrontation between the man and care home staff.
Another example where rights aware decision making made a real difference for the better concerned a larger woman in residential care who had not been showered or bathed for many weeks. The care home, with the agreement of the local authority which funded her care, had initially been providing her instead with a ‘strip’ wash so that staff did not have to lift her. The woman was very upset about the situation, especially because warmer weather was causing her to perspire. The woman felt she was being treated in a way that was degrading to her and was not respecting her dignity. Within days of this being raised a new occupational therapist was brought in to explore other options and it was quickly agreed that a hoist could be used. From this point onwards the woman was able to take a bath or shower according to her wishes and she was accordingly treated with dignity and respect. The interests of the care home staff were also given due emphasis in finding a solution acceptable to everyone.
One of the most important cases decided since the Human Rights Act came into force, the YL case which was decided in June of this year, involved a private care home. YL was an 84 year old woman with Alzheimer's disease. In January 2006, she became a resident of a nursing home under the terms of an agreement signed on YL’s behalf by her daughter. The home is privately owned, although YL’s care and accommodation was arranged and largely funded by the local authority in accordance with its statutory obligations to do so. Six months after becoming a resident in the home, the company which owned the care home wrote to YL's daughter giving her 28 days notice to terminate YL’s right to remain in the care home. The agreement between the parties allowed the care home to terminate the contract on four week’s notice but an undertaking had been given to do so only for ‘good reasons’. The termination was prompted by concerns - which are disputed - about the conduct of some of YL’s family during visits. There was evidence that YL would deteriorate clinically if she was transferred to an unfamiliar care setting. YL argued that the notice given by the care home was incompatible with her right to respect for her home under Article 8 of the European Convention on Human Rights and was therefore unlawful.
As many of you will be aware the Human Rights Act legally only imposes an obligation upon ‘public authorities’ or persons whose function are of a ‘public nature’ to respect the rights set out in the European Convention. The key question for the House of Lords, therefore, was whether the provision of care and accommodation by a privately owned care home largely funded by the local authority in accordance with its statutory obligations constituted a “function of a public nature” for the purposes of the Human Rights Act.
By the narrowest of majorities, 3 to 2 which indicates a very sharp difference of opinion in their Lordships’ House, YL’s claim was dismissed. It was decided that the provision of care and accommodation by a privately owned care home above did not constitute a “function of a public nature”.
Lord Bingham, the most senior Law Lord, in issuing a dissenting judgment argued that the situation complained of was precisely the “function of a public nature” that Article 6 of the Human Rights Act referred to. The three judges in the majority, however, relied heavily on private law principles and contractual remedies. They decided that a private care home was simply providing a service for which it charges a commercial fee and that the manager’s duties to its residents are governed by private law as opposed to being imposed by public law.
This did not mean, however, as I have already mentioned that the private care home did not have to respect the human rights of their residents. As one of the Law Lords noted there is an express agreement that the care home must observe the human rights of all its residents. Any breach by the care home of these human rights accordingly is challengeable under the contract with the local authorities .
For my part I fully agree with that logic. Unless Parliament passes legislation to that effect, local authorities should not be able to transfer their legal obligations to respect and protect human rights to care homes and in turn absolve themselves of their duties. Private care homes must, however, of course respect the human rights of their residents, as I am sure they all wish to in any case. But in the instances where things go seriously wrong and elderly residents are, for example, mistreated, any solution does not lie under the Human Rights Act but in the law of contract.
This decision of the House of Lords has been subject to comment and some criticism in the legal community from those who think the Lords should have used the opportunity to extend the scope of the Human Rights Act but there has been little, if any, comment in the general media. And this goes back to one of my earlier arguments. This case was a classic example of legitimate differences of opinion but the courts struck a well reasoned and fair balance between the rights and obligations of the different parties. Unsurprisingly it received little mainstream attention.
But I also feel that care residents, as is the case for all other individuals as well, should only have to rely on the courts in exceptional circumstances. An awareness of human rights in which the rights and responsibilities of all affected are considered in the decision making process is far more preferable. To that end the creation last year of the position of the Commissioner for Older People in Wales, based upon the models which already exist for children in all parts of the United Kingdom is very welcome. One of the most important responsibilities of the Commissioner is promoting best practice of treatment and part of the change in culture where rights and responsibilities are an integrated part of our thinking.
The term human rights is now part of our everyday language. They are a constant feature of the language of national and international leaders. Although there are many that through their actions diminish the claim, I think it is important for us to stress that we do live in an age of human rights; in a world in which human rights are our lingua franca. We can talk about rights in a number of different capacities, as parents, workers and as individuals. But with rights come responsibilities. Human rights are not the preserve of lawyers and the courts as is so often assumed. Rights belong to us all regardless of our differences and due to the feature we all share, that we are human. By taking greater account of our rights and responsibilities in our day to day lives we can make society a better place for us all. That vision of human rights is very different from what some of the papers would have us believe!