‘I’m drowning in a great soup of law!”
This is how a care home manager put it to me, when I made some passing comment about the value of human rights law, as I’m prone to do. Perhaps a bit rashly, I highlighted the importance of Article 8 of the Human Rights Act.
She let me have it. She despaired, she said, of finding ways to make sense of this great ‘soup’ in a way that improved practice. In particular, she couldn’t make it seem relevant to her staff, who wanted practical guidance in how to care for the people in front of them.
I do sympathise. But in fact, this part of human rights law does translate into practice, and it does so in an intuitive way.
An Englishman’s Home is his Castle
At its heart, this ancient bit of law means we – women as well as men, of course – can live as we want, provided we don’t harm other people, and ‘the state’ – police, social workers, council officials or anyone else – can’t come in unless we invite them.
This is reflected in slightly more modern language in Article 8 of the Human Rights Act 1998 (HRA), which guarantees, in general, everyone’s right to respect for private and family life, home and correspondence.
This right has a very wide scope, protecting four elements of our lives:
- Private life – in addition to personal privacy this covers issues such as personal choices, relationships, physical and mental wellbeing, access to personal information and participation in community life
- Family life – this is interpreted broadly, depends on circumstances and existence of close personal ties. It does not just cover blood or formalised relationships: it protects our right to choose our friends and go to the religious places or clubs of our choice
- Home – this is not a right to housing, but a right to respect for a home someone already has. It also includes the right to enjoy your home without interference from others, particularly ‘the state’
- Correspondence – this covers all forms of communication including phone calls, letters, text messages, emails and so on. Provided we don’t lack capacity to deal with our own communications, hearing from old friends is a real way to bring pleasure into life
Article 8 can be Restricted
It is a ‘qualified right’, which means it can sometimes be restricted. We all know that, in some circumstances, police, or doctors, or social workers, may be able to interfere with your right to a private and family life in order to protect your health or well-being, or public safety or the freedoms of others. But Article 8 helps ensure they don’t over-do it and abuse their powers.
‘Necessary and in Proportion’
A case came to court a while ago, which featured CF, a man of 91, who lived alone except for his cat Fluffy. A distant relative got in touch with the Local Authority to say they were concerned he might be the subject of financial abuse. Certainly CF, who had a civil service pension and owned his own house, gave money generously to his church.
Early one morning, the social worker appeared unannounced on his doorstep. Mr F, who wasn’t expecting visitors, was still in his dressing gown and slippers. The social worker said he had to go with her ‘to a hotel’, adding that the police would make him go if he refused. Very distressed, and still not dressed, he did as he was told. He found himself not in a hotel but in a locked dementia unit in a care home. He stayed there, despite protesting he wanted to be at home, for well over a year: for some of this time he was prevented from seeing his friends, and from going to his church of choice.
When it finally came to court (as a challenge to a DoLS authorisation) the Judge threw the book at the Local Authority. Mr F had a right under Article 8 to live in his house with Fluffy, as long as he was safe from avoidable harm, and not harming others. A proportionate response to a rather vague allegation of financial abuse would have been to make an appointment to visit him, at a time when he was up and dressed and expecting a visitor. It was in no way a proportionate or necessary reaction to bully him out of his home: the breach of his Article 8 rights could not be justified.
As the Judge said, it was particularly sad to subject someone of such a great age to such distress, when he, and his beloved cat, might have expected to enjoy life together. The Judge also pointed out that Mr F had a right to decide to spend his money as he chose, even if this was not the way some relatives would have preferred him to spend it.
Article 8 in Practice
This is where we need to revisit our assumptions and, sometimes, the way things have always been done. The care home I went to that opened everyone’s letters, even their birthday cards – ‘in case there was anything important in them’ – was not just taking away from residents the simple pleasure of opening their own post. It was breaching their right to having their correspondence respected as private. If someone needs help to read what’s inside the envelope, or a friendly hand is needed to put the card up on the cupboard, that’s different.
The same is true of people wanting to speak on the phone to their relatives; the phone in the corridor outside the manager’s office isn’t necessarily the best place to do this. Can we do this differently? Can residents be helped to use Skype (on the manager’s laptop) for a leisurely conversation with relatives and friends who are far away?
See what innovative ways your staff can come up with, to enhance people’s rights under Article 8.