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11th September 2017

What does Human Rights have to do with Breakfast Time?

Human rights aren’t always popular, but they are a way of protecting the things that make life worth living for any of us. It’s thanks to our human rights that we can’t be treated in a way that demeans our dignity, for example by those nurses in hospitals who sometimes forget that, for many of us, being naked in public places is novel and disconcerting. We can’t be deprived of our liberty in care, even if those looking after us are sure it’s in our best interests, without clear safeguards being provided so that we, or someone who cares about us, can challenge what is happening.

How early is too early for breakfast? Is it fair to get people up earlier than they want?

I’ve been reading, as I always do, the thought-provoking ‘Ask Sheila’ questions and answers. Today I can’t stop thinking about two rather similar questions, about breakfast times and get up times, that Sheila answered on 7 September.

If providers are confused, QCS is a great resource — so I’m glad, of course, that these questions were asked. But, like Sheila, I’m really bothered that the culture of care seems stuck in a mindset where these questions can even be asked. It’s over ten years ago, now, that the owner-manager of a care home staggered me by saying, in a somewhat smug way, ‘I tell people and their families, when someone moves in here, they give up their human rights!’ This attitude is far less common now, but should not exist.

Right to live as we wish

This right, which is crucial to all of us, is contained in Article 8 of the Human Rights Act 1998:

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

This applies to public bodies — so to hospitals and local authorities — and also to anyone if some of their functions are ‘of a public nature’: this certainly includes providers commissioned by local authorities or clinical commissioning groups. The local authority has a duty to be ‘proactive’ in protecting rights under this law; this means that if they know or ‘ought to know’ (how wide is that!) that someone’s rights are being breached ‘on their patch’ they must take action to put it right. In a recent Ombudsman’s report, the local authority was held responsible for a care provider failing to ensure someone’s right to be visited by a certain relative.

But I’d hate to see you relying on this: we all have a real duty to act with every care for the rights of people we provide services to.

A qualified right

As you’ll have seen above, it can be lawful to breach someone’s Article 8 rights, but only for specific reasons. I can’t see how someone’s choice of early or later rising can be seen as damaging to national security…

And we have all seen blanket rules leading to distress and, all too often, to a person being restrained when it could have been avoided. People can get very upset when woken at a time that isn’t of their choosing (or if made to go to bed just when they want to see the Strictly Results Show).

The least restrictive option

This is one of the principles that are written into the Mental Capacity Act (MCA), and applies whenever action is taken to limit the freedoms of a person who lacks capacity. It fits within ‘person-centred care’. Indeed, best interests decision-making under the MCA is increasingly recognised as being a way to see the person’s point of view and make decisions that fit the person’s wishes and feelings if at all possible.

Back to breakfast

I’ve diverted myself away from breakfast and getting-up times, but I hope you agree it’s been relevant. The human rights clue is perhaps in the word ‘home’: we have a right, within our home, to live in the way that feels natural to us, as long as we don’t make it impossible for others to do so too. A right to a private life certainly covers the time a person wants to get up or have breakfast: come to that, bedtime should be a choice too.

I’m sure Sheila is right that people’s preferences will tend to balance each other out: Jim wants to be up with the lark, while Jenna would rather stop up later at night and, as my grandmother used to put it, ‘not get up until the streets are aired.’

I do appreciate that for many providers there are certain factors, inevitable in communal living, that might have a bearing on the details of how this is done.  For example, the cooks may not be able to provide a full cooked breakfast at 10 if they are already busy with the lunchtime menu. The choice available to a late riser might reflect such realities.

‘This home would run like clockwork if it wasn’t for the residents!’

Here’s the challenge: how can you achieve the change in the culture of your nursing or care home, to reflect Article 8 and the rights it gives people? Wide discussion with staff is essential; use a team meeting to explore how they would like to be treated if they had care needs. Care settings exist because people need to have their home somewhere they can be supported where necessary; don’t let staff fall into the trap of seeing people’s uniqueness and individuality just as barriers to efficiency. The happiness of the people who use the service is surely our paramount aim; respecting their right to be themselves is an essential first step in making people happy. Write to us at QCS with your good ideas, and we’ll share the best.

*All information is correct at the time of publishing

Rachel Griffiths

Mental Capacity and Human Rights Specialist

Rachel has huge experience and knowledge in the area of Mental Capacity, including how to recognise deprivation of liberty, when and how to assess capacity and how to go about making decisions in someone’s best interests. She is nationally recognised as a leading voice with regards to Mental Capacity, and is involved with setting the agenda as well as providing advice and information about Mental Capacity. The information, guidance and support that Rachel provides helps to ensure that the way people work is within the law and recognises that the person using services is always at the centre of any decisions made. Read more

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