Human rights in care homes

The Human Rights Act is to be extended to care homes. Lawyer Neena Sharma (pictured) offers a guide to the liabilities care home owners’ now face

The government is to extend the Human Rights Act 1998 to cover people that councils have placed in privately-run care homes. What are the risks care home owners now face

When the Human Rights Act (HRA) was passed in 1998, it was intended to protect all those in the care of public bodies. But last year, a House of Lords’ ruling decided that it would not apply to 300,000 plus people whose stay in private care homes is funded by local authorities.

Now, care services minister Ivan Lewis has said the decision will be reversed following pressure from charities and the revelation from the House of Commons select committee on human rights that 21 per cent of care homes failed to meet basic standards on dignity and privacy.

The impact of the changes

In light of the changes, care home owners would be well advised to check that good practice standards are being met, and to check the level of cover for legal expenses offered by their insurance policy,

The terms of the HRA mean most cases would involve neglect, abuse or illegal eviction. But while some of the most newsworthy and high profile charges against care homes have come from these types of cases, they constitute a small proportion of the legal actions faced by care home owners.

In reality, the majority of the liability faced by care home owners comes about – as in many businesses – through violations of health and safety regulations.

Current liability issues

Owners of nursing or residential homes are at more risk of civil litigation than the average business owner because there are two different groups who might bring an action against them.

Owners could be liable for any injury sustained by either an employee, or by a patient in care. Aside from the risk of civil actions this presents, there is also the risk of prosecution by the Health and Safety Executive or local authority itself, which investigate any serious workplace injury.

In more extreme cases, where negligence results in death, manslaughter charges might be brought against the management. As those living in care homes are typically more physically fragile, this is a distinct risk.

If a death is the result of one person’s negligence, a charge of gross negligence manslaughter may be brought against that individual – and under new corporate manslaughter legislation the organisation as a whole can now be convicted if systemic negligence was to blame.

A care home business would be unlikely to survive the negative publicity generated by a corporate manslaughter conviction.

Limiting liability

Measures such as ensuring that all staff have thorough training and that appropriate safety equipment is available will reduce the likelihood of an accident happening and also be a strong defence in the event of any accusation of negligence.

Care home managers should regularly check that safety measures are in place and being followed.

It is also vital to ensure the integrity and reliability of employees. The Safeguarding Vulnerable Groups Act (SVGA) 2006 received royal assent in November 2006 and requires any application to work with vulnerable adults to be checked by the Independent Safeguarding Board, which keeps a list of banned individuals.

Ultimately, though, even when this is in place, the best advice for care home owners is to keep a close eye on the practice of their staff, to ensure health and safety guidelines are followed and to ensure they are adequately insured.

As legislation changes such as the extension of the HRA and the introduction of the SVGA show, negligence and abuse in the UK’s care home sector will not be tolerated.

Caring – a risky business

According to the HSE, one of the most common causes for accidents and ill health in care homes and independent hospitals is manual handling.

Lifting and moving patients several times a day can be very strenuous work and, without the proper training, care workers can develop serious musculoskeletal disorders. Each year, more than 5,000 manual handling injuries to healthcare employees are reported to the HSE, and around half of these are due to lifting patients.

Nurses, care assistants and assistant nurses account for 50 per cent of all reported injuries and within this group, care assistants and assistant nurses suffer twice as many injuries as nurses.

Care home owners may also be liable for injuries caused to patients who are lifted or moved by poorly trained staff.

Another major cause of injuries in the workplace is violence towards staff by residents, which can often result in serious physical and psychological damage.

YL v Birmingham City Council 2007

The ruling that the HRA doesn’t cover those whose accommodation in private care homes is council funded was made in a case last year.

An 83-year-old Alzheimer’s patient, named only as YL for legal reasons, was threatened with eviction from a care home because of the alleged disruptive behaviour of her husband and daughter, and her lawyers argued the eviction violated her rights to privacy and a family life under the HRA.

Their argument was that, as her accommodation was council funded, the care home should take on the same responsibilities as the local authority, and the HRA should therefore apply. The law lords turned down the appeal after voting against it with a 3-2 majority.

Author information
Neena Sharma is an associate with the regulatory team, Keoghs law firm
For more information, call Neena Sharma on 01204 677000 or visit www.keoghs.co.uk.

More information

Ivan Lewis announces plan to close care home rights loophole

Older people’s rights to complain in care homes