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

24 October 2012 by Guest Contributor

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.

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• BC Supreme Court grasps the nettle in right to die case
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• Equality, human rights and religion or belief: time to get out of the courtroom? – Alice Donald