29th January 2019

Human rights in care settings: what matters to people?

 

Not long ago I judged the National Dementia Awards, which were sponsored by QCS. It was such a privilege to meet people working in care who were ‘getting it right’ – and doing so with enthusiasm, humour, and above all a real flexibility.

I vividly remember seeing the photos of someone well into her nineties, tiny and physically very frail. She had always been mad about horses but was now living in a care home far from the stables that had been such an important part of her life. Her carers wanted to give her a treat.

On a summer’s day, she was installed in a comfortable armchair in the garden, and the photos show her joy when, unexpectedly, a calm, beautiful and very large horse was led up to her. He leaned his enormous head down to her, with great gentleness. Beaming, she stroked his soft nose, smelling again the lovely smell of hay on his breath.

Now, I can’t even imagine the risk assessment needed to make this surprise possible. But I’m so glad that the care provider went to that trouble and took the risk. It meant they gave her such happiness when, as it turned out, her life was coming close to its end.

The best care is human rights-based

Those carers probably didn’t frame their actions as being ‘human rights compliant’ – they were simply enabling someone very frail to feel again a pleasure that had been a central part of their life.  They were bringing to life the entire concept of ‘person-centredness’, in a really practical way. And, almost by accident, they were demonstrating the importance of working within Article 8 of the Human Rights Act 1998.

What do people want?  Article 8 rights!

Article 8 says that we all have a right to live as far as possible how we want, without interference from ‘the state,’ which includes professionals in any sphere that is regulated by the Care Quality Commission (CQC). This right can only be interfered with when it’s essential to keep us safe or to protect ‘public health and morals.’

This sounds a bit dry, but the tale of the lady and the horse brings to life what Article 8 compliance looks like in practice. Remember that it applies to everyone, including, importantly, those who lack capacity to tell you plainly what would make them happy. Many older people with dementia might have outlived friends but have strong relationships with a pet, or love keeping chickens. Younger people with learning disabilities or brain injuries following an accident often form loving bonds with animals, who never judge them for their communication difficulties. These are the bonds, for them, that fend off depression or low self-esteem.

Yes, there are times when you have to limit someone’s Article 8 rights because it’s impossible to honour them fully: that much-loved dog might be known to be unpredictably aggressive, so only able to interact with the owner, who lacks capacity to recognise the risks, when muzzled and on a lead.  And the Article 8 rights of one person lacking capacity  – for example, the right to want a loving relationship – might have to be curtailed in order to protect someone else’s right to be left alone and not pestered.

DoLS and Article 8

The deprivation of liberty safeguards (DoLS) exist to protect someone’s rights if they need to be under complete supervision and control, and prevented from leaving their hospital or care home, when they lack capacity to consent to this care plan. They have the right, through DoLS, to challenge the deprivation of their liberty, and restraints are only lawful under the MCA when they’re the least restrictive option that can be found, to keep them safe. These are the person’s rights under Article 5 of the Human Rights Act.  But DoLS can never give powers to breach other basic rights, such as those outlined in Article 8.

You’ll see by now why it worries me greatly when care providers go along with the social workers and, sometimes, doctors, who want to use the DoLS to limit someone’s rights under Article 8.  It must always be a ‘red flag’ if you see this being suggested or, even worse, put into practice.  DoLS can never be used to stop someone seeing their relatives or friends, or going to church: if you think this might be happening, highlight to the DoLS team that they need to take legal advice.

Enhanced Article 8 rights: A marker of excellent care

I often work with a like-minded consultant psychiatrist: we make life difficult together for doctors who don’t realise the Mental Capacity Act applies to them too.  She says to me, ‘If I end up in a care home, make sure they know how much I love dogs: I hate bingo, but I want to go on stroking dogs!’

Here’s a challenge for your staff, from the most junior housekeepers to managers and deputies: choose an individual and explore what would enable them to enjoy their Article 8 rights.  This is such a rewarding and creative part of care, especially with those who lack capacity to explain their needs. When judging the National Dementia Awards, I had no doubt that one of the greatest areas of fun and fulfilment for staff was seeing people flourish when their Article 8 rights are promoted.

And make sure you let the CQC inspectors know that you’re doing it! Respect for Article 8 doesn’t happen by accident, yet it is an infallible marker of excellent care.

*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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