When the House of Lords ruled in June that the Human Rights Act 1998 did not apply to the residents of private care homes, condemnation of the decision spanned the political spectrum (from the Workers Revolutionary Party to the British National Party), the media (from the Guardian to the Daily Mail) and the whole gamut of user groups, legal lobbyists and human rights organisations. In fact the only kind words for the ruling came from the three Law Lords who delivered it (as opposed to the two who opposed it) and the private care homes who stand to benefit from it.
The decision has variously been described as “sickening” (Help the Aged), “untenable” (Disability Rights Commission), “a catastrophe” (Age Concern) and “undermining the fabric of human rights protection in the UK” (British Institute for Human Rights). Even the minister for human rights Baroness Ashton said she was disappointed.
Indeed, there are even concerns that as the ruling is based on the legal proposition that private care homes do not provide “functions of a public nature” the same principle could apply to other contracted out services such as children’s care homes or even fostering.
Little wonder that Ashton has pledged to plug the loophole “as a matter of the utmost urgency”. In the meantime, however, given that all residents of care homes remain protected by the Care Standards Act 2000, will the Lords’ decision really make much difference to the UK’s 300,000 residents of independent care homes?
According to Disability Rights Commission chair Sir Bert Massie (pictured), the answer is emphatically “yes”. “This ruling will cement a fundamental inequality in disabled and older people’s rights,” he says. “Those in care homes run by local councils have legal rights to human dignity, those contracted out will not.”
And, unfortunately, most elderly residents of care homes will find themselves on the wrong side of this divide, says Massie.
“Nine out of 10 care homes are privately run. All too frequently we hear stories of residents who have been abused, restrained or neglected. For the care industry to be outside the legal framework of meeting basic human rights can only be described as perverse.”
Indeed, Massie points out that the implications of the Lords ruling could extend to any of the growing number of services contracted out by councils.
“Many public services are now run by the private and voluntary sector. The dismantling of that public provision should not diminish a citizen’s rights to basic, fundamental freedoms. Further discussions should now take place about how these rights can best be guaranteed,” he says.
The legal, civil rights and user support groups that joined together to intervene in the case on behalf of care home residents have expressed concern that the Lords’ decision may dissuade elderly residents or their families from complaining about inadequate care or even abuse.
“Residents and their families should be able to challenge human rights abuses at source,” says a joint statement from Liberty, Justice, the British Institute of Human Rights, Age Concern, Help the Aged and the Disability Rights Commission.
“This decision means that instead, complaints must be taken all the way to the local authority. This will almost certainly be a disincentive for those already frightened by the prospect of speaking out against poor treatment.”
Unsurprisingly, independent care home owners do not quite see it that way. They point out that human rights legislation was never meant to apply to non-statutory organisations and that existing UK law already offers ample protection to all care home residents. Furthermore, using European Union-drafted legislation to settle petty contractual disputes could threaten the existence of those independent care homes unable to afford expensive lawyers.
“Common sense has prevailed,” says chief executive of the National Care Homes Association Sheila Scott. “More than 70% of care homes in the UK are owned by small private businesses. Attempts to treat them like government bodies would have placed their future in jeopardy.”
And, according to Martin Green, chief executive of the English Community Care Association, the Lords’ ruling in no way threatens the human rights of private care home residents. “The values and practice of human rights legislation are enshrined in the Care Standards Act and are the basis on which all care providers deliver their services,” he says.
“We are pleased that the House of Lords has recognised this in its judgement and has not placed an unnecessary burden on a sector whose energy should be directed at delivering care rather than complying with more regulation.”
However, Gordon Lishman, director general of Age Concern, claims that the protection offered to care home residents by current legislation is far from adequate.
“Behaviour currently lawful in independent care homes includes evicting residents for spurious reasons and washing or dressing them without respecting their dignity and privacy,” he says. “The government must take immediate steps to legislate in order to extend human rights protection to all people in independent care homes – which they have said was their original intention. It is crucial to end the two-tier system that leaves some of the most vulnerable people in society without any real protection for their human rights.”
HUMAN RIGHTS ABUSES
The British Institute for Human Rights also lists a range of human rights abuses occurring in care home settings including neglect, persistent rough handling, leaving people for hours in soiled sheets, split up older couples, and routine overmedication.
According to the institute’s policy and research officer Sonya Sceats, the only way forward now is for the government to introduce legislation to plug the loophole. Left as it is, the anomaly could not only affect the human rights of elderly care home residents but might infringe the rights of children in care, she says.
“The failure of this test case doesn’t augur well for any future test cases involving other vulnerable groups such as children or disabled people,” she says.
“My guess is that the government will introduce measures [to plug the loophole] but that they will take a very targeted approach that won’t necessarily extend to other vulnerable groups. What is really needed is legislation.”
The Law Lords and the ‘Leonard Cheshire loophole’
The Law Lords ruling came in the case of an 84-year-old woman with Alzheimer’s disease, known as YL. Birmingham Council placed YL in a Southern Cross Healthcare home in January 2006. Last June there was a dispute over the conduct of YL’s husband and daughter during visits and the company gave her 28 days notice to quit. The family took the case to court claiming that the eviction was incompatible with YL’s right to respect for her home.
The case was taken up by a mix of politicians, lawyers and charity activists that included the secretary of state for constitutional affairs, Liberty, Age Concern, Help the Aged and the Disability Rights Commission in a bid to plug the “Leonard Cheshire loophole” created by the Court of Appeal in 2002. This was the ruling in which Leonard Cheshire was found to be entitled to close one of its care homes without consideration of residents’ human rights because the company did not provide “functions of a public nature”.
In a 3:2 split decision, the Law Lords decided to follow the Leonard Cheshire precedent and reject YL’s appeal. Meanwhile, YL’s family have spoken to Southern Cross and discussed their differences. YL has been allowed to stay.
● Article 2: Right to life
● Article 3: Prohibition of torture and inhuman and degrading treatment
● Article 4: Prohibition of slavery and forced labour.
● Article 5: Right to liberty and security of the person.
● Article 6: Right to a fair trial.
● Article 7: No punishment without law.
● Article 8: Right to respect for private and family life, home and correspondence
● Article 9: Freedom of thought, conscience and religion.
● Article 10: Freedom of expression.
● Article 11: Freedom of assembly and association.
● Article 12: Right to marry and found a family.
● Article 14: Prohibition of discrimination.
● Article 16: Restrictions on political activity of aliens.
● Article 17: Prohibition of abuse of rights.
● Article 18: Limitation on use of restrictions on rights.
● Information on the act including explanations of the provisions and the actual act itself
● Information on how the act affects service users and commisssioners
Help the Aged
Disability Rights Commission
This article appeared in the 2 August issue under the headline “Out of the public eye”
This weeks other feature articles
Children in care: reducing the numbers
Will new continuing care criteria stop funding rows with NHS?