Gillian Dalley’s Relatives and Residents Association is looking to gain Human Rights Act coverage for care home residents

The Safeguarding Vulnerable Groups Bill, currently going through parliament, will ensure people applying to work with vulnerable adults in health and social care will be vetted and those deemed unsuitable barred.

It is part of the increasing priority the government is giving to protecting vulnerable adults. In March, the then care services minister Liam Byrne said he would consider putting adult protection on an equivalent statutory footing to child protection (Byrne considers giving legal status to protection of vulnerable adults, 16 March) and in the following month he launched a dignity campaign to promote greater respect for care users.

However, for older people’s charities, there is a blot on the landscape, namely that people who receive care from independent sector care agencies have no redress against providers under the Human Rights Act 1998.

Last week, the Relatives and Residents Association, which campaigns on behalf of care home residents and their families, held a parliamentary seminar to raise awareness of the issue.

Chief executive Gillian Dalley says extending HRA protection is “about society showing some respect to its frailest, most vulnerable members”.

She says three rights are at stake: the rights to life, to respect for people’s private lives and homes, and to freedom from inhuman or degrading treatment.

At the heart of the problem is the fact that the HRA imposes duties on “public authorities”, a term Dalley argues “has never properly been defined”. Definition has been left to the courts, which have excluded independent sector care providers.

In a ruling in March 2002, the Appeal Court rejected claims that residents of a Leonard Cheshire care home had had their right to respect for their home violated by the charity’s decision to shut it down. The court ruled that Leonard Cheshire was not a “public authority” despite the fact that it was commissioned by a local authority to provide care to the residents. Instead, the court said it was up to councils to protect service users’ human rights through their contracting arrangements with providers.

Last year, the government issued guidance for public bodies suggesting how to ensure that privately-delivered services were HRA compliant through contract specifications.

But Dalley doubts that the situation is improving. “Because the law is confused, councils are not clear what their duties are on the ground,” she says.

But publicly funded care users are in a stronger position than self-funders, who make up one-third of care home residents but do not have council care managers to look out for them.

Dalley says: “We have examples of people who are self-funding who are at a loss about what to do when things go wrong.”

While self-funders in principle receive protection from the Commission for Social Care Inspection, through its regulation of providers, Dalley claims this is insufficient to uphold their human rights, particularly given CSCI’s decision to end mandatory annual inspections of homes.

In response, Liberal Democrat MP Paul Burstow introduced a bill in January to make all regulated care services subject to the HRA. Though it is due to receive its second reading in the Commons next month, the Care of Older and Incapacitated People (Human Rights) Bill is unlikely to receive sufficient parliamentary time this session to be passed.

Burstow says he may try to introduce another bill in the next session or table amendments to government legislation to achieve the change. He is also awaiting a response from Byrne’s successor, Ivan Lewis, on issues raised in his bill.

However, Dalley worries that reform may be scuppered by the bad press the HRA has received recently on law-and-order issues, which the government has done little to counter. “We want to protect the good reputation of human rights legislation. It’s of exceptional importance to frail, vulnerable people.”