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Whose Rights – The Care Act and the Human Rights Act
One of the issues addressed by the new Care Act 2014 is whether the Human Rights Act 1998 (HRA) applies to privately owned care homes. So does this mean that residents in care homes can bring a case against the care home providers under the Human Rights Act? Well, it might, and it depends who is paying for your care. As you might imagine there isn’t a straightforward clarification of this situation, which has been a source of contention as far back as 2002 in a case involving Leonard Cheshire Homes.
Let’s start with what the Human Rights Act says. It states that it is unlawful for a public authority to act in a way that contravenes the European Convention on Human Rights. The Act’s definition of a public authority includes anyone who performs a public function. What is the definition of a public function? You guessed it - there isn’t one! Hence some of the confusion that has arisen in recent years. It’s probably fairly easy to define some organisations as providing a public function, like a local authority or government department. The confusion occurs because so many ‘state’ organisations have now contracted health and social care services out to private and independent providers.
Let’s look at the case involving the Leonard Cheshire Foundation in 2002. The organisation decided to close a care home, and three long-term residents who had been placed in the home by their local authority, and who part-funded their fees, claimed the decision to close the home was a breach of their human rights. The court’s judgement was that Leonard Cheshire’s functions were not public, and the fact that the three residents were part-funded by the local authority did not make a difference, and so they were not covered by the Human Rights Act.
There’s a more recent case of YL v Birmingham City Council in 2007. In this case Mrs YL, a lady of 84 years who had dementia, was living in a care home owned by Southern Cross Limited, but her place was funded by Birmingham City Council. Her daughter received notice that her mother had to leave, and claimed her mother’s human rights were being violated. This case went to appeal and was finally heard in the House of Lords, which reinforced the view that private care homes were not public authorities, even when providing care for residents who were publicly funded.
Many charities and disabled rights campaigners were shocked at this decision and lot of pressure was put on Parliament to change this. Thus, when the Government brought in the Health and Social Care Act 2008, they introduced a clause which stated that a private care home could be providing a public function if its residents were publicly funded.
The Care Act 2014
The Care Act 2014 reinforces that new position. It says that a registered care provider is, for the purposes of the Human Rights Act 1998, “…to be exercising a function of a public nature in providing the care or support, if … the care or support is arranged by and/or paid for (directly or indirectly, and in whole or in part) by such an authority”.
So have things changed? One of the interesting features of the Care Act 2014 is that it introduces the idea of a cap or limit on the amount that someone would have to pay out of their own savings towards their care costs. To begin that calculation, residents will be encouraged to get assessed by their local authority and ask them to arrange their care (even if the person is paying it all themselves initially). In this way they would then fall under the umbrella of the provision of their care being a public function and gain the protection of the Human Rights Act 1998.
Why are we concerned about the Human Rights Act in the first place? As you know the HRA was introduced as a means of enshrining in UK law something which the UK government had been signed up to for a long time, namely the European Convention on Human Rights. This contains a number of articles, covering such things as the right not to be subject to torture, the right to life, the right to practice religion - all basic absolute rights to protect people in the wake of atrocities in the Second World War.
Human Rights and the care sector
So how that does that relate to the health and social care sector? Here’s a couple of case law examples:
- The first case brought under the HRA was about mental health tribunals, where the onus used to be on patients having to ‘prove’ they were well enough to be discharged.
- The Deprivation of Liberty safeguards, much in the news recently, only came about as a result of the Bournewood NHS Trust having been found to have deprived someone of their liberty unlawfully in contravention of their human rights.
Let us consider some of the articles of the Human Rights Act in the context of care homes. Some of these are called qualified rights, such as Article 5, the right to liberty. This is called a qualified right because there may be occasions when those rights can be denied if there is a specific reason to do so, and where other laws allow this to happen, for example by detaining someone in a hospital under the Mental Health Act 1983 when they would be at risk if they weren’t detained.
Another important qualified right is Article 8 of the Human Rights Act which provides for the right to private and family life, home and correspondence. There are a number of issues that might need to be considered here:
- Is the care home where someone is to be placed near enough for close family to be able to visit?
- Are residents able to have privacy in their own rooms? Does the home have CCTV and how is it used?
- Is the care home respected as the resident’s home, and are they involved in decisions about the day to day running of the home?
You will find a number of QCS policies, particularly those covering participation, principles of customer care, and privacy, all reinforce these human rights.