30 April 2019

Charities and campaigners have raised concerns 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. But what does human rights have to do with it?

The Relatives and Residents Association told the Express that, over the past five years, they have dealt with at least one case a week in which relatives were barred from homes after complaining about poor treatment of loved ones.

A recent BBC investigation, received figures from the Care Quality Commission which reveal 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.

 

Can Human Rights Help?

Under our Human Rights Act, public authorities have a legal duty act compatibly with our human rights in all they do (section 6, HRA). 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). This right can extend to many different areas of our lives, and is especially relevant when we’re receiving care and treatment.

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 locally 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. As Debbie Westhead, interim chief inspector of adult social care at the CQC stated;

“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.”

 

Specific Regulatory Issues

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.  

 

A Human Rights Approach to Care

The CQC themselves take a human rights approach to regulation. Having trained thousands of their inspectors we know how important it is that care services have human rights front and centre of their service delivery, policies and procedures. For example, as Caroline, a CQC Inspector we trained says:

“The value of being able to measure good quality care and support against human rights adds another tool to my kit during inspection.”

BIHR has many years of experience of working with care homes and their staff and residents to help them prevent risks to human rights by knowing what their duties are, and ensuring they put respect for and protection of human rights at the heart of their day to day work. Compliance with human rights does not have to be a stick, but can be the carrot that helps achieve excellent service provision. As a care home staff member that attended one of our recent human rights trainings put it:

“Human rights are something every human should have knowledge on as it applies to us all.”