Over the last 4 weeks, colleagues at BIHR have been working as quickly as possible to offer human rights support and training to those delivering and accessing health and care services during Covid-19. Even with the sweeping changes to laws that affect many of us on a daily basis, parliamentarians and the government have stated that decisions should not breach people’s legally protected human rights.

We’ve pulled together a series of short, 2 hour webinars to support staff to know the rights within the Human Rights Act and offer them the practical framework which can be used make difficult practice decisions in a way that is compatible with human rights law. This is more important than ever at a time when staff are overloaded with new legislation and guidance some of which is in force, some of it coming soon, and real confusion about the difference between what is law and what is guidance. Staff need to be supported with clarity, back upped by legislation and offered practical ways to make decisions which uphold human rights.

We’ve now built the capacity of over 500 staff members including nurses, social workers, occupational therapists, approved mental health professionals, residential care staff, advocates, community care staff and lots more to ensure rights are upheld during this crisis.

Two incredible things I’ve noticed which I wanted to share:

1-That public officials during the most difficult of times are seeking out training to ensure that they uphold human rights in everything they do.

2- That every single question asked by a staff member has been about another person’s human rights, never their own.

I wanted to put something out about this. Something really clear for the people who don’t ask about themselves because they are too busy caring for us. And this is something very close to home for me (as it is for most of us). My mum is a nurse, my dad a service manager and my best friend a paramedic. The only element of calm for me is that my fiancé is a hairdresser safe at home watching Bargain Hunt.

So, what rights do staff have at this time? The answer, the same rights as the people they care for. Human rights are the rights we all entitled to simply by virtue of being human. And staff in our health and care services are human, indeed they are our mothers, fathers, grandparents, aunties, uncles, siblings and close friends.

The Human Rights Act 1998 (the Act) which brings fundamental protections from the European Convention of Human Rights into UK domestic law, puts a legal duty on public bodies to respect, protect and fulfil human rights. That includes the rights of the people public bodies support and the people working for them. Those working for NHS organisations, local authorities, the police, the prison service and education authorities are protected by the 16 rights set out in the Act. It’s important to be clear here that all of the rights within the Human Rights Act have a practical framework attached which sets out whether they are absolute (can never be lawfully restricted) or non-absolute (can be restricted in certain circumstances if it’s done lawfully, for a legitimate aim and in a proportionate way).

Let’s look firstly at two non-absolute human rights and what this means within the current context. First, the Right to Liberty (Art 5, HRA). Living in “lockdown” most of us are obeying government guidance on social distancing voluntarily, accepting that in these times it is proportionate for us to accept restrictions on our movement. In most cases, this restriction will not meet the legal test of a “deprivation of liberty” which requires us to be under constant supervision and control. For others, for example, those living in care, hospitals and other institutions who were deprived of liberty before COVID-19 this will be hugely different and the state then has a legal duty to ensure any restrictions being placed on an individuals’ right to Liberty are lawful, for a legitimate aim and done in the least restrictive way.

We are also now all experiencing restrictions on our Right to ordinary Family Life (Art 8, HRA). Our right to be with our family and friends, our physical and mental wellbeing, our participation in our communities. Again, for those us living at home with no interaction with public services we are choosing to obey guidance on who we can and cannot see. For those of us who for example are trying to visit family members in hospital and being prevented from doing so, the public body again has a legal duty to ensure that those restrictions are lawful, for a legitimate aim and proportionate to the risk. This is why there should never be any blanket restrictions in place and public bodies must seek to ensure the restriction is the least restrictive option.

For those of us working in health and care, any restrictions on your non-absolute rights imposed by your employer, work in the same way. They must be lawful, for a legitimate aim and the least restrictive option available. Your employer must have your rights at the forefront of all decisions, actions, policy and practice during COVID-19.

The Right to Life is different to liberty and family life. It is an absolute human right and the very limited exceptions set out in the right are not relevant to health and care. In the context of the right to life, the legal duty to respect means that public bodies like the NHS have a negative duty not to take away someone’s right to life. The legal duty to protect is about the positive obligation to step in and take action when there is a known risk to life. There is a two-stage test for determining whether or not a public body has breached (or risks breaching) someone’s right to life (that someone could be a person in their care or a staff member).

Firstly, is there a real and immediate risk that public officials knew or should have known about? Secondly- were all reasonable steps taken to protect life?

This is at the heart of concern for protecting the rights of staff on the frontline. Clearly, COVID-19 is a real and immediate risk to life to us all, not just to those deemed vulnerable or frail as first thought. Given that social distancing is our primary means of limiting the spread of infection, it is also apparent that staff on the frontline are at real risk. It is generally not possible to provide treatment or care for people suffering COVID-19 from 2 meters away.

So reasonable steps; can we honestly then say that all reasonable steps are being taken by public bodies to protect the right to life? Questions about PPE are regular features of the government’s daily briefings, and whilst large numbers, sometimes numbers in the millions are mentioned, concerns remain on the ground. Every day we hear stories of doctors and nurses performing high risk procedures without vital personal protective equipment. A recent survey by the Doctor’s Association UK said that only 52% of clinicians have access to full length gowns. We hear that supply chains for PPE have failed and provision of equipment for, and testing of, social care workers has not been properly thought through.

The system is not perfect; this is a pandemic, and there are, no doubt, some supply issues. But it is also true that as early as 27 February the World Health Organisation identified the priority need for staff caring for those with COVID-19 to have PPE. On the 3 March the WHO declared that the worldwide shortage of PPE was endangering healthcare workers and called on governments to support a 40% increase in PPE production. The 27 February was 50 days ago. Real and immediate risk, and taking reasonable steps?

Already parliamentary inquiries are looking at the government’s COVID-19 response in relation to people’s human rights and equality. When the world emerges from this virus, there will be a time of reflection and review, of investigations and probably legal cases, into the decisions and actions of public bodies which risked the rights of both the people in their care and the selfless people delivering that care. But that will be after. After the harm. After avoidable loss of life.

We need to do better now. We need to not just clap for our carers, but to act. This is people needing treatment and those providing it. This is us, all of us, and we all have the same human rights, which should be respected, protected and fulfilled.