A Blog by: Richard Copson is a Senior Human Rights Solicitor at Slater and Gordon Lawyers UK.

Slater and Gordon are supporting the British Institute of Human Rights’ 15 Days of Action, during which time we will celebrate 15 years of the Human Rights Act.

In this blog, we will look at how the Human Rights Act has helped vulnerable people who need care, including those who lack mental capacity to make decisions for themselves – people who, due to illness or disability, are unable to understand or retain information and make informed decisions about their care, treatment or where they should live.

Vulnerable and disabled people, some of whom lack capacity, their families and those who care for them often encounter difficulties in accessing essential care services and disputes with public bodies, such as local authorities and the NHS, can arise over the care needs or  best interests of an individual.  

The Human Rights Act has helped so many people in vulnerable situations – people who, without the protections afforded by the Act, are at risk of having their basic rights ignored or abused by powerful public bodies with key duties to protect vulnerable people. Under the Act, public bodies making decisions about care needs and/or best interests must abide by their duties under the likes of the Mental Capacity Act or the new Care Act – but must ensure they do so with respect for the human rights of the people they help.

Human rights which seek to protect the dignity, privacy and liberty of vulnerable and disabled people underpin a fair decision-making process and ensure that public bodies comply with their legal duties.

Deprivation of liberty

Fifteen years ago, the Human Rights Act enshrined into our domestic law the Articles of the European Convention on Human Rights.

Article 5 protects an individual’s right to liberty and says no one should be deprived of their liberty without lawful authority.

The Deprivation of Liberty Safeguarding authorisation process (DoLS) was introduced shortly after the European Court of Human Rights ruled that our existing law did not provide adequate protection for people who lack capacity in cases where it was considered to be in their best interests to deprive them of their liberty.

DoLS are intended to satisfy the “ lawful authority” safeguard required  by Article 5. Under DoLS, anyone in a care home or hospital who lacks capacity to consent to their stay and who is being deprived of their liberty must be subject to a DoLS authorisation which must be put in place on the basis of the principles of best interests and the least restrictive option.

The DoLS process and the concept of deprivation of liberty have been subject to much criticism, debate and court scrutiny, notably in the Supreme Court ruling in Cheshire West, and the Law Commission has recently issued a consultation suggesting a radical overhaul of how to protect vulnerable people and those deprived of their liberty.

However, despite obvious failings in the DoLS process, it is nonetheless a process which seeks to  protect people who lack capacity and are deprived of their liberty – giving them a right to challenge the deprivation – and is based on sound principles of lawful authority, best interests and the least restrictive option. All principles which would not have the significance they rightly do were it not for human rights legislation and the way that human rights have played an increasing role when challenging public bodies who have failed to protect vulnerable and incapacitated people.

As human rights lawyers, we at Slater and Gordon see human rights as an essential part of fair decision making in relation to care and support for disabled, vulnerable or incapacitated people and we readily rely upon human rights to help some of our most vulnerable clients.

We recently represented a woman in her mid-70’s who was receiving treatment for cancer in hospital. She suffered from dementia, had a history of mental health problems and appeared to lack capacity to make decisions about her care needs. Following treatment, the hospital did not discharge her home or engage with the local authority about her care needs but instead sent her to a psychiatric unit where she was detained without her consent or any lawful authorisation.

When her son raised concerns, she was assessed as lacking capacity to make decisions about her care needs and her stay in hospital and was made subject to a DoLS which her son, acting on his mother’s behalf, challenged in the Court of Protection on the basis that she was being unlawfully deprived of her liberty, should not be in hospital and should instead be receiving care in the community. The court accepted this argument and our client was discharged from hospital and is now receiving specialist dementia care in a residential care home.

Respecting family life

The Human Rights Act has also helped vulnerable people who do have capacity but who receive care that does not meet their needs and does not allow them to live the full and independent lives they deserve.

We recently acted for a partially-sighted elderly woman who had high care needs due to various cognitive difficulties. She had capacity and was living in her own home but needed daily help from carers and respite care at a residential home. After a lengthy spell in residential care following an illness, the local authority  suggested that she should not return home, largely because the costs of providing care for her at home – which they funded – were far greater that the costs of her remaining in residential care.

We successfully pursued an argument for her that whilst local authorities have a duty to assess care needs, plan and fund appropriate care services and do so in a cost effective way, they also have a duty to make fair and reasoned decisions with regard to human rights, in this case our client’s right to respect for her privacy and family life under Article 8 of the European Convention on Human Rights.

Another example of how the Human Rights Act has played a part in the lives of ordinary people would be our 98-year-old client Mary. She suffered from dementia and had lived happily in the care home of her choice for many years. She supported herself financially until her savings reduced and she sought financial assistance from the local authority who wanted to move Mary to a cheaper care home.

This would clearly have been the wrong move for Mary, a frail and vulnerable person with significant health problems, who was settled in the care home. We urged the local authority to consider Mary’s dignity and right to respect for privacy and family life under Article 8 and, with minimum fuss, convinced them that she should stay in the care home of her choice.

Another good example of how human rights legislation has been used to help some of the most vulnerable members of our society.