By Eilidh Turnbull, British Institute of Human Rights
Charities and campaigners have raised concerns recently about an increase in the number of relatives who have been banned from visiting their family members in care homes after complaining about their treatment.
The Relatives and Residents Association told the Express last month that, over the past five years, it has dealt with at least one case a week in which relatives were barred from homes after complaining about poor treatment of loved ones.
A BBC investigation, aired last month, received figures from the Care Quality Commission which revealed that 2,141 people had been given notice to leave residential and nursing homes between December 2017 and December 2018. Since December 2017, care homes must inform the CQC when giving residents notice to leave and why they are doing so. The main reason given by care homes for these notices being issued was that they could not offer the higher level of care that the resident needs. However, information is not gathered on how many residents were given notice to leave after their relatives had made complaints.
More on human rights
Under section 6 of the Human Rights Act 1998, public authorities have a legal duty act compatibly with our human rights in all they do. The duty also applies when a resident’s care is being funded or arranged by the NHS or a local authority. In this case, care home staff must respect, protect and fulfil people’s human rights in their work, including service delivery, policies and decision-making.
One of the key human rights we all have under the Human Rights Act is the right to private and family life, home and correspondence (Article 8 of the European Convention on Human Rights). This right can extend to many different areas of our lives, and is especially relevant when we’re receiving care and treatment.
Three-stage rights test
The right to private and family life means that we all have a right to maintain relationships with our loved ones. This includes the right to live with your family and, where this is not possible, the right to regular contact. The care home, and its staff, have an obligation to protect the human rights of NHS or local authority-funded residents. Banning visitors would interfere with this right. Public officials (the care home staff in this situation) can only restrict the resident’s right to private and family life if the restriction is lawful, for a legitimate aim and proportionate. Serious questions need to be raised about whether this three-stage test is being met in the examples flagged by the Relatives and Residents Association.
The right to home under Article 8 can also be relevant here. Whilst it is not the right to a home, it is the right to respect for the home you already have. The concept of “home” can mean different things for different people. For some people, a care home may be “home” to them. Telling a person they must leave the place they see as home can be really distressing; and again that three-stage test applies. Are the decisions of care homes to serve notice on residents lawful, for a legitimate aim and proportionate, and therefore a permissible restriction of their human rights?
Proportionality in this situation means that each decision to ban a relative from visiting or to give a resident notice to leave must only be done if the staff have considered all other options available and picked the least restrictive option. A ban or even notice to leave a care home in response to a complaint seems to fall far short of the least restrictive option requirement. Residents living in care homes, and their relatives, should feel safe to raise any issues they have with the level of care provided without feeling threatened by eviction or visitation bans.
‘Care homes are people’s homes’
As Debbie Westhead, interim chief inspector of adult social care at the CQC, stated, in relation to the Relatives and Residents Association findings:
“We must never forget that care homes are people’s homes and those living there should feel supported to live a full and happy life.”
The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards which the provision of activities such as provision of care in a care home must not fall below. These standards, which the Care Quality Commission inspects against, includes regulation 10, which states that service users must be treated with dignity and respect. This includes “ensuring the privacy of the service user” and “supporting the autonomy, independence and involvement in the community” of the service user. Restricting contact between residents and visitors the care provider may breach this regulation. This leaves care homes at risk of regulatory enforcement action to address the situation.
Risk of enforcement action
Poor compliance with the Human Rights Act is something the CQC takes seriously. It can lead to identification of poor practice, which affects reputation and compliance with its monitoring requirements.
For example, enforcement action was taken against a care home following a CQC inspection which found that the provider had disregarded people’s human rights. This led to the service’s CQC registration being withdrawn. In that case, residents’ rights to liberty (Article 5) and non-discrimination (Article 14) were not properly considered when making decisions to restrict their movements, resulting in unlawful detention of people assumed (but not proven) to lack capacity to make decisions for themselves. You can read more about this case in our blog.
It is not hard to imagine a situation where risks to other rights, such as to respect for private and family life, could also trigger regulatory action within care homes (or indeed complaints and even litigation from residents and their families). In fact, the CQC’s recently refreshed Our human rights approach for how we regulate health and social care services: February 2019 clearly states “We need to consider the Articles in the Human Rights Act more explicitly when we consider whether to take enforcement action for breaches of the fundamental standards. This is because whether someone’s rights have been breached is a factor in our enforcement decision-making.” The price of not integrating human rights into care home practice can be a high one to pay.
Seeing human rights as an investment
But human rights in care isn’t simply about mitigating risk; delivering rights respecting services is also about driving up quality and best practice. Human rights can be used to demonstrate that a care home is meeting CQC requirements and providing outstanding care. A recent inspection of a care home in West Sussex rated as “outstanding” highlighted the staff’s understanding of equality, diversity and human rights, which led to residents being treated with dignity and respect, as a key marker of best practice.
Certainly, the care home providers we work with at BIHR see the integration of human rights into staff training and service delivery as an investment in good-quality provision that focuses on the person, and builds positive staff and resident relationships. Examples of positive human rights practice within care homes we work with include ensuring older couples can stay together rather than being sent to care homes that are miles apart, respecting the relationship choices of a person with dementia by ensuring thorough capacity assessments, and seeing non-verbal communication as distress and exploring how to understand this and adjust the timing of care provision to meet residents’ needs.
There are many examples of how small actions to ensure people’s human rights are respected makes a real difference to the day to day lives of care home residents. Empowering staff to know and act upon their duties under the Human Rights Act provides a strong organisational message that doing what is right is not simply an optional extra (or about being a trouble maker); rather, it is a priority, which leaves residents and staff better off. As independent evaluation of our work shows, using a human rights approach in health and social care can enable staff to feel reconnected to their public service values and can help shift organisational culture. As a care home staff member that attended one of our recent human rights training sessions put it:
“Human rights are something every human should have knowledge on as it applies to us all.”
Eilidh Turnbull is research and communications assistant at the British Institute of Human Rights