Caught in the act?

The Human Rights Act was supposed to be a boon for lawyers and
involve social workers in endless legal wrangles. Anabel Unity Sale
explores its impact so far.

Social workers and barristers have a lot in common. No, really.
The general public think they both regularly stick their noses in
where they are not wanted to stir up trouble. At least the
consolation for the legal eagles – the lucky devils – is their pay
cheques.

Last autumn this was supposed to get worse. It was anticipated
that there would be a stampede of barristers and their clients into
the country’s courtrooms, all claiming that social services
departments had abused their clients’ rights. Why? Because the
Human Rights Act 1998 finally came into effect in October 2000.

It became unlawful for any public authority – including
councils, the health service, statutory bodies, housing
associations, trusts and some charities – to act in a way that is
incompatible with the European Convention on Human Rights. The UK
government had been observing the European Convention on Human
Rights since 1953.

Now social services, health and all manner of other bodies have
been given direct responsibility for ensuring their users’ human
rights are upheld, protected and enforced. For the first time, the
UK’s domestic courts could hear such cases instead of the European
Court of Human Rights in Strasbourg.

Articles under the act that are particularly relevant to social
services include the right to life (article 2); the prohibition of
degrading treatment (article 3); the right to liberty and security
of person (article 5); and the right to freedom of expression
(article 10). The respect for family life, home and correspondence
(article 8) has important connotations for professionals working
with children, especially in relation to the detention of
children.

A total of 109 cases have made challenges under the act since 2
October last year. Claims of a breach of human rights were upheld
in just 15 of these. Of the 109 cases, 19 were civil and private
cases, 50 were civil and public, and 40 were criminal, including a
judicial review. The act made absolutely no difference in just
under half of the cases (53) and affected the outcome of 56. Four
of the 15 successful challenges related to article 3; two to
article 4 (no slavery or forced labour); and 12 to article 6 (right
to a fair trial or hearing within a reasonable time).

One successful challenge to the act came from the family of
child O on 20 February this year in the Court of Appeal. A local
council had wanted to issue a care order for child O because it
claimed O’s mother, who had a history of psychotic illness, had
failed to protect her older siblings. The council had to settle for
a supervision order because the court ruled a care order would be a
disproportionate interference with the right to family life under
article 8.

Article 8 was also used effectively in the case of Z county
council v R in November 2000. Z county council wanted R to reveal
the identity of the father of her baby, whom she wanted to have
adopted. Neither the baby’s father nor R’s own family knew about
the child’s existence and R did not want them to know. The court
ruled that in balancing the competing rights to privacy in the
case, R had a right to privacy under article 8 and she was not
forced to reveal the father’s identity.

So if so few cases brought under the act have been upheld, how
does the sector now view it?

Some of the original predictions about the act’s impact were
over-hyped, says Bernadette Livesey, a human rights solicitor for
Walker Morris. She adds: “The catch is the media and politicians
have spent so much time saying ‘this has been beamed down from
Planet Zog and it will change everything we know’. But we, as
British people, are very familiar with all of the act’s
concepts.”

She adds: “It has introduced a framework for decision-making but
most of the challenges have not been upheld because we already
generally have a good system.”

Livesey says the act will reaffirm good practice if a social
services department, as a public authority, already does what it is
supposed to do. “The Human Rights Act is never going to threaten
you because you already have a system which enshrines its
principles. Your department might have not called it that but that
is what they are,” she says.

Joanne Easterbrook, a partner in law firm Trowers and Hamlin,
also believes the act will help encourage good practice among
staff. She says: “The impact of the act is probably greatest where
it is recognised by public authorities that good risk management
requires them to ensure that their day-to-day decisions, by staff
at all levels, respect the rights of the individual as set out
under the convention.”

She adds: “The act forces public authorities to question their
decisions and decision-making processes to ensure they are
compatible with the act. For every issue they have, every care
order they have, someone along the line is going to look at the
act.”

So few successful challenges to the act, Easterbrook says, are a
good sign. “When legislation has been drafted which reflects a
sensible balance between the rights of the state and the
individual, and the Children Act 1989 may be cited as a good
example, the extent of successful challenges is likely to be
significantly lower,” she says.

Social services departments should not rest on their laurels
because relatively few challenges to the act have so far been
successful, warns Association of Directors of Social Services
London chairperson Anthony Douglas.

He says: “The message for public agencies is to be aware their
work may be forensically examined with hindsight under the act in a
much stronger way than it has been in the past. So while there have
been few cases, there is no room for complacency.”

While Douglas acknowledges that the act is an “important extra
protection for service users” he says councils have legitimate
concerns over any compensation awards they may have to meet.

He says: “The act is part of a wider trend…to strengthen the
rights of complainants, who are being paid larger compensation
payments to settle cases or disputes. Local authorities are
increasingly worried about the cost to them of fighting bitterly
contested cases where the act is part of a civil defence.”

For Simon Foster, principal solicitor of the mental health
charity Mind, the act has not lived up to his expectations: “We are
a little disappointed that as yet it has not resulted in generally
improved rights for people with mental health problems. Judges have
understandably adopted a cautious approach to an application which
strikes at existing legislation or generally accepted
practice.”

But this does not stop him from seeing the act’s good
intentions. “I am hopeful that it will gradually encourage a shift
in thinking from the traditional view of the service user being a
passive recipient of services – either grateful or ungrateful – to
the service user having the right to the sort of service he or she
truly deserves,” he says. Mind, Foster says, wants to see the act
encourage a more “patient-centred” approach to aid swifter
recoveries.

He warns that social services providers need to maintain client
confidentiality in these days of partnership working. “Breaches of
confidentiality, especially those which appear to be encouraged by
the present climate of joint working and information sharing, are
also vulnerable to challenges under article 8.”

In fact, he argues, article 8 may well prove a challenge to all
providers. He says: “It has unlimited potential since any attempt
by health or social services authorities to intervene in someone’s
life is potentially a violation which needs to be justified.”

The Department of Health believes the act is a way of ensuring
users’ human rights are top of the agenda for all relevant
agencies. A DoH spokesperson says: “The implementation of the act
provides a significant opportunity to raise awareness of human
rights issues and promote a culture of respect for human rights in
the delivery of services.”

She adds: “The approach in the DoH is to build on best practice
by mainstreaming thinking on human rights in national frameworks
and standards within which local services can operate.”

So far, she says, the act has been considered in the thinking on
the Care Standards Act, the establishment of national bodies such
as the General Social Care Council, the National Care Standards
Commission and the Social Care Institute of Excellence.

The first seven months of the Human Rights Act have been
relatively uneventful for social care. Barristers have not amassed
gigantic fortunes and social services have not been hung, drawn and
quartered on the altar of spurious legal challenges to their work.
Clearly the ace card up the act’s sleeve is article 8. Only when we
start to see more court challenges citing it will we know how
significant the act is to users and providers alike.