Closing the loophole: Care services and human rights protection – Sanchita Hosali and Helen Wildbore

22 May 2013 by Guest Contributor

Much of the House of Lords debate surrounding yesterday’s Second Reading of the Care and Support Bill focused on seeking solutions to complex issues around the future provision of care. Additionally, as several peers flagged, the Bill also provides a timely opportunity to clarify which bodies have legal obligations to uphold protections under the Human Rights Act. Baroness Campbell noted “those who receive their care not from a public authority but from a private body lack the full protection of the Human Rights Act…[This] is a loophole that must be closed.”

What loophole?

Section 6 of the Human Rights Act essentially creates a legal duty to respect, protect and fulfil certain human rights (drawn from the European Convention on Human Rights). This duty is placed on public authorities and those performing “public functions”. The second type of body – those performing public functions – has proved somewhat awkward in practice, particularly in relation to those who receive care services.

The Human Rights Act itself does not define public functions, a flexibility which can be traced back to the intention that the law take “account of the fact that, over the past 20 years, an increasingly large number of private bodies, such as companies or charities, have come to exercise public functions that were previously exercised by public authorities.”The loophole has arisen from interpretations about which bodies carry out ‘public functions’ and therefore have duties under the Act (YL v Birmingham City Council and Others [2007] UKHL 27).

The loophole was partially closed, following calls from a range of groups, by the Health and Social Care Act 2008 (section 145). Thus, those whose care is arranged under the National Assistance Act 1948 are now covered by the Human Rights Act. However gaps in protection remain for those whose care is organised outside of the NAA. For example, people who receive their care in a home but pay for it themselves and people who receive their care at home by an independent provider, currently lack the full protection of the Human Rights Act.

Why closing the gap is important

Without direct access to human rights protections people at risk of poor treatment have limited options to hold their provider to account. There is indirect protection through regulators of care services such as the Care Quality Commission and via the positive obligations on local authorities (and other relevant public authorities) to take action to protect people at known risk from harm.

However, this is a distant means of redress often removed from people’s daily realities. Recent investigations show how failures of care can give rise to human rights issues, and how those who lack the full protection of the Human Rights Act are at risk. For example an Inquiry by the Equality and Human Rights Commission  revealed serious, systemic threats to the basic human rights of older people who are receiving home care services.

As Baroness Greengross pointed out in yesterday’s debate on the Care and Support Bill: “there are some serious problems in ensuring that human rights protection will follow people, however their care is provided…Whoever the provider of care might be, frail and vulnerable people, who are usually very old, need that protection. We have seen too many instances of human rights being abused and quite dreadfully breached.”

Added to this is the lack of certainty about the legal obligations of various providers. Clarification of legal duties is important for compliance, but as practice-based work shows it can also be a powerful driver for developing right-respecting services.

Closing the loophole

A group of organisations including BIHR, Age UK and Liberty, are calling for an amendment to the Care and Support Bill which would close the loophole by clarifying that the Human Rights Act applies to any person who is receiving care services regulated under the Health and Social Care Act 2008.

During yesterday’s Second Reading debate several peers highlighted the need for the Care and Support Bill to be strengthened by ensuring the loophole in human rights protection is closed, an issue which will no doubt be carefully considered during the next stages of the Bill.  Such a provision would also set down in law what the Government has previously said on this issue, namely that “the requirement for people to have their human rights protected and respected is not negotiable.”

Sanchita Hosali and Helen Wildbore are Deputy Director and Human Rights Officer respectively of the British Institute of Human Rights

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