Why saving the Human Rights Act will be good for your health – Alice Donald

24 October 2012 by

Debate about whether the Human Rights Act (HRA) might be replaced by a new UK Bill of Rights often dwells on the potential loss, or at least weakening, of the legal route to accountability and redress for victims of human rights violations. An event next month in Liverpool reminds us how much more might be lost if the HRA were to be scrapped or watered down. In particular, it highlights the significance of section 6 of the Act, which requires all public authorities to act in a way which is compatible with European Convention rights unless primary legislation requires them to act otherwise.

The event in question is the launch of the latest results of the Human Rights in Healthcare programme. The programme was set up in 2006 by the Department of Health and the British Institute of Human Rights; in 2011-12, it was led by Lindsey Dyer of Mersey Care NHS Trust. Under its leadership, pilot NHS Trusts have used human rights to design and run services in areas as diverse as dementia care, acute hospital settings, district nursing and care homes.

One initiative that will be on display is a human rights board game that people with learning disabilities can play to learn how to access their human rights, co-produced by service users and staff in Mersey Care.

Another is a practical intervention to improve hydration and nutrition among patients in wards run by Betsi Cadwaladr University Health Board – starting from the premise that this critical aspect of care is, as recent statistics and incidents show, a right to life issue.

Why section 6 matters

Section 6 HRA provides the basis for moving beyond a purely legalistic approach to human rights and towards the wider ambition of developing a human rights ‘culture’ in public life. The former Lord Chancellor, Lord Irvine, defined such a culture as one in which public authorities are ‘habitually, automatically responsive to human rights considerations’ in all aspects of their work.

Accounts of the HRA’s first decade confirm that such a culture has largely failed to materialise (see, for example, Chapter 4 of the Equality and Human Rights Commission’s 2009 Human Rights Inquiry and the chapter in its 2012 Human Rights Review on Article 8, the right to respect for private and family life).

A minimal, risk-based approach to human rights compliance has taken precedence in most public authorities over a positive culture of implementation. In particular, public authorities do not always understand or act upon their positive obligation to take proactive steps to secure human rights and not merely to restrict their interference with them (as discussed in Chapter 2 here).

However, the situation across the UK is not uniform, as the Human Rights in Healthcare programme shows. Some public authorities have embraced human rights with considerable energy and creativity. These authorities view human rights as both a set of legal standards and obligations and a source of principles and practical methods which determine how those standards and obligations are achieved. It is the ‘how’ question that animates the pilot NHS Trusts whose work will be launched next month – the practical value of using human rights as a framework for making decisions, balancing conflicting interests, setting priorities, training staff, designing services and interacting with people using those services.

Putting rights into practice

Some examples from the health sector illustrate the potential of this ‘human rights-based approach’ – and, in some instances, concrete measures of its beneficial impact.

Mersey Care has pioneered the use of human rights to assess and manage risk in its service for adults with learning disabilities. At the heart of the approach is the principle of proportionality, enabling clinical staff to balance the rights engaged in the individual’s risky behaviour against the rights engaged in the strategy proposed to manage that risk. The emphasis is on being proactive rather than reactive by analysing the individual’s life history and the context in which risky behaviour occurs. Service users are supported to assess and manage risk to themselves or others. The intention is to prevent escalation and keep interference with individuals’ rights to a minimum – and to justify in a transparent way interference that is deemed necessary and proportionate.

One beneficiary was a patient, Anne, whose self-harming behaviour had led to her room being stripped bare of objects along with other highly restrictive measures. When her care plan was reassessed with explicit consideration of her human rights, the situation changed: Anne became more involved in determining her care needs and supportive measures replaced restrictive ones.

Service users at Mersey Care are trained and reimbursed for participating in the running of the organisation. They help to recruit and train staff; improve services and develop new ones; and review serious incidents. Tangible benefits for service users include improved clinical outcomes and recovery; engagement in purposeful activity; and increased self-esteem.

Clinicians at Mersey Care suggest that the participation of service users – underpinned by activities to increase their knowledge and understanding of human rights – has the potential to transform the way a service is designed and run and, in turn, its organisational culture.

Culture change

The ambitious aim of culture change was embraced in 2002 by The State Hospital in Lanarkshire, which provides psychiatric care in conditions of high security for people with mental illness who are compulsorily detained under mental health or criminal law. After a damning external report, the hospital decided to use the Human Rights Act as ‘a vehicle for cultural change’ in order to move away from what it acknowledged to be a custodial and punitive regime. As the hospital put it,

The starting point now of a patient’s journey … is the recognition of the patient’s human rights. Forfeiting all rights on admission and winning back privileges is no longer sustainable.

Policies and practices were reviewed using the human rights ‘lens’ of legality, necessity and proportionality and staff were trained to apply this approach across the hospital.

Among the outcomes were an end to the routine use of seclusion as punishment;  a reduction in ‘blanket’ policies in favour of individualised ones; increased satisfaction among patients with their care and treatment; and reduced stress and anxiety among staff.

Professionals and service users who have pioneered the practical application of human rights acknowledge that much remains to be done, both to promote their work more widely and to evaluate its longer-term impact. Considerable challenges exist, not least the necessity of securing the support of senior managers and commissioners of health and social care and (in England) pursuing any values-based process of organisational change amid the turmoil produced by the Health and Social Care Act 2012.

Yet even the fragmentary experience to date illustrates the value and potential of taking the Human Rights Act out of the courtroom and into the care home, ward, outpatient service – and NHS boardroom.

The larger goal is not only to avoid scandals such as Winterbourne View or the fatal neglect of patients with learning disabilities, but also to ensure that the Human Rights Act fulfils both the transformative and remedial roles it was anticipated as playing at its inception.

Book a free place at the Human Rights in Healthcare event at Aintree, Liverpool, on 21 November  2012 here 

This guest post is by Alice Donald, a Senior Research Fellow at the Human Rights and Social Justice Research Institute, London Metropolitan University, and sat on the steering group of the Human Rights in Healthcare programme in 2011-12.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts: 

 

1 comment;


  1. Michael Hill says:

    Let us hope these new Acts will remedy the indifference of local authorities in the upkeep & repair of disabled persons Stair L:ifts, which lately they seem to dismiss their legal obligations regarding such apparatus.
    Also, that the requirements of disabled outpatients ambulance tranport plus that of carers be put back in the hands of the medical proffession, not unqualified `patient transport` personnel, which has led to missed appointments. & life-threatening situations.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: