By Josephine Whitehouse, Research and Communications Assistant at BIHR

23 July 2020

What do you think of when you think about human rights? Perhaps you think of ‘doing the right thing’ or of ‘treating people how you would want to be treated’. These are great starting points and point to the positive connotations that the idea of human rights has. But human rights are more than just positive connotations and subjective ideas of “kindness” or “rightness”. In fact, they are legally defined, legally protected standards which public bodies (like Local Authorities and NHS Trusts) must protect and promote. My colleague Carlyn has explained the difference between kindness and human rights in this blog. 

When we access health and care services in the UK, we are (usually) accessing services provided by public bodies, or private bodies carrying out a public function. Human rights therefore come into play in the health and social care setting, and those providing and making decisions about your care must respect and protect your rights.

In the face of Covid-19, the UK Government and devolved administrations have brought in a sheaf of legislative changes, many of which have a wide-ranging impact on the health and social care sector. Perhaps the most far-reaching new law – the Coronavirus Act, introduced by the UK Government - makes sweeping changes to health and care legislation, among other areas, UK-wide. The devolved administrations in Scotland, Northern Ireland and Wales can “switch on” certain parts of the Coronavirus Act to temporarily change the law in that nation. With care and support duties across the UK watered down when the easements are switched on, BIHR is concerned that human rights have not been protected and promoted. Human rights don’t go away during an emergency.

While this is more pressing than ever during the Emergency Period of Covid-19, it is important that we keep looking to the future, to a time when Covid-19 is under control and normal services have resumed. Human rights don’t go away after an emergency, either. In fact, they apply all the time. Some rights can be restricted in certain circumstances, while other rights can never lawfully be restricted at all.

With Covid-19 shedding light on the strain and pressure that our health and social care services are under, it is important that the recovery from Covid-19 keeps human rights conversations at its core.

What are human rights?

The Human Rights Act (HRA) is the law in the UK that ensures our human rights are respected and protected. It contains the 16 human rights of the European Convention on Human Rights and puts them into our law here at home. These rights ensure that we are all treated with dignity, respect and without discrimination.

The HRA places a legal duty on public bodies (and those delivering a “function of public nature”) throughout the UK to respect, protect and fulfil human rights across their actions, decisions, policies and services. The duty on public officials has three parts:

  1. Respect: duty to not breach human rights.
  2. Protect: duty to take action to safeguard people’s rights.
  3. Fulfil: duty to have the right processes and procedures in place, and to investigate when things have gone wrong.

This duty has not changed during the Covid-19 pandemic and any decisions made by a public body, including in health and social care settings, must respect and protect human rights.

Importantly, the HRA is a foundational law. This means that all other UK laws should be compatible with the HRA, both on paper and in practice. This includes laws on health and social care across the UK, such as: the Social Services and Well-being (Wales) Act 2014 in Wales, the Care Act 2014 in England, the Mental Health (Care and Treatment) (Scotland) Act 2003 in Scotland and the Health and Social Care (Reform) Act (Northern Ireland) 2009 in Northern Ireland.

There are 16 rights in the Human Rights Act, including:

  • The right to life (Article 2)
  • The right to be free from torture, inhuman and degrading treatment (Article 3)
  • The right to liberty (Article 5)
  • The right to respect for private and family life, home and correspondence (Article 8)
  • The right not to be discriminated against in relation to any of the rights listed in the HRA (Article 14)

You can read our Explainer on the Human Rights Act here.

Human rights in health and care

Human rights are the hallmark of a democratic and fair society; providing the rule book for how public authorities, such as NHS healthcare organisations, should treat us. In this way, human rights provide a vital safety-net for us all, setting down in law the basic minimums that everyone should have simply because we are human.

Healthcare which respects, protects and fulfils our human rights has an important role in ensuring we can all live dignified lives and participate as active members of our communities. In healthcare settings, we can often be very reliant on public services for support. It is essential that public bodies meet this responsibility and provide care that ensures and promotes respect for our human rights.

It might be easier to understand how human rights come into play in health and social care settings if we think about specific scenarios. Let’s think about a scenario involving mental capacity. In Scotland, for adults, lots of mental capacity safeguards sit under the Adults with Incapacity (Scotland) Act 2000. Section 1 of this Act contains five Principles which should be followed when any decisions are made on behalf of an adult with incapacity. The Scottish Government have made a really helpful factsheet about these Principles. These Principles include taking into account the wishes of the person with incapacity, encouraging them to use their own skills and abilities as much as possible, and ensuring that any decision made for someone with incapacity should be the option that restricts that person’s freedom as little as possible. Are you a person accessing health and care services, or loved one? Find out more about our work with people accessing health services here.

These principles are really important in promoting the well-being and independence of a person with incapacity, particularly when decisions about care are made. These principles align with human rights duties on public bodies providing care and support. Let’s take the right to respect for private and family life, home and correspondence (Article 8 of the HRA). This right covers the right to autonomy, which is about having control over your own body and life and being able to participate in decisions about yourself. This is so even where someone has incapacity. They have a right to private life and being involved in decisions about their care and life is part of this right. The service providing care or making decisions have a duty to respect and promote this right, and so they should be involving the person with incapacity in the decisions they are making and making sure they are supporting that person to have as much control over their life as possible. In Scotland, sticking to those Principles alongside human rights duties will ensure the individual’s right to autonomy is respected, protected and fulfilled.

We could also think about how human rights come into play in other health and care settings. In a real-life example in which BIHR played a part, the parents of a young man with mental health problems who was placed in residential care on a short-term basis noticed unexplained bruising on his body during a visit one day. They raised the issue with managers at the home, but their concerns were dismissed. They were also told that they were no longer permitted to visit their son. After participating in a BIHR training session, the parents approached the care home once again and invoked their son’s right not to be treated in an inhuman and degrading way (Article 3, HRA) and their right to respect for family life (Article 8, HRA). As a result, the ban on their visits was revoked and an investigation was conducted into the bruising on their son’s body.

These examples help to highlight the absolute importance of human rights in ensuring we are treated with respect and dignity in our care. Human rights form the basis of a public healthcare system that delivers dignified and accountable care to the people who use it. What’s more, human rights are the law. They must be protected and promoted by public bodies such as NHS services, who have legal duties to do this. Are you a staff member working in health and social care services? Find out more about our work with staff and how to book a human rights session for your team here. Our sessions will support you to know and uphold human rights in your everyday practice.

You can find out more about our work on human rights in health and care here.

Human rights in health and care during Covid-19

During Covid-19, the UK Government introduced the Coronavirus Act to change the law and the powers of public bodies and officials in response to Covid-19. The Act includes changes to health and care services across the UK.

In England, a particularly important part of this new law makes changes to the Care Act, which sets out how adult social care should be provided in England and places duties on local authorities’ (councils) around assessing people’s needs and their eligibility for care and support. The changes made by the Coronavirus Act allow local authorities to prioritise resources should they be unable to meet their full duties under the Care Act. The UK government has said this might be necessary if there is an increase in demand for care and support or if there are less available staff to provide this as the Covid-19 pandemic reaches its peak. The changes are called the “Easements” which local authorities can choose to “switch on” as necessary to meet changing demands while delivering public services during Covid-19. With the Easements switched on, a local authority does not have to comply with the following Care Act duties:

  • Duty to assess needs
  • Duty to assess the needs of a carer
  • Duty to give written records of an assessment
  • Duty to give effect to a preferred place of accommodation
  • Duty to carry out financial assessments, but it cannot charge for services unless such an assessment has been carried out.

Similar changes to health and social care law across the devolved UK nations and across different health-related settings have also been enacted. See our handy plain language Explainers on these changes to law and policy and the human rights considerations – you can find them all here as part of our dedicated Coronavirus Hub.

So far, 8 local authorities in England have switched on the Care Act Easements at some point and eased their duties. All of them have now switched them back off, but the power of all local authorities to switch them on remains. We at BIHR, and many others, are concerned about the use of these powers and what they mean for people who use and rely on these services during Covid-19. In the local authorities where the changes have been switched on, local authorities only need to meet needs when a failure to do so would amount to a breach of that person’s human rights. However, other duties from the Care Act still remain, such as the general duty to promote wellbeing and to safeguard adults

The reality of the situation is that adults with care needs may see a reduction or even complete removal of the care they have been receiving so far. We know through our evidence collection and direct work across the UK that this is indeed happening. Human rights concerns are abound in this situation – having looked at the importance of human rights in ensuring we receive dignified and rights-respecting care, we can imagine that a local authority which switches on the Easements and no longer has a duty to give effect to a preferred place of accommodation to someone they care for, for example, might quite easily disregard the views and wishes of that person in deciding where to place them. This is a key aspect of the right to respect for private and family life. Although the Care Act duty is reduced, the human rights duty on the public body to protect and promote the right to respect for private and family life is not.

Our work on human rights during Covid-19

Throughout Covid-19, we at BIHR have been working to centre human rights in the swiftly evolving legal landscape we are living through. We’ve been supporting people, communities and local decision-makers to uphold human rights during Covid-19 through direct sessions, partnerships and resources. Our work has made us aware of human rights issues in the response to Covid-19.

By the end of May we had trained hundreds of frontline social work, care, education, housing and health staff in 8 local authorities, serving over 2.7 million people. Typically, our sessions found initial low levels of knowledge about human rights law (when asked to rate knowledge: 2.8 out of 5 (average)) and even lower knowledge about the impact of Coronavirus laws on people's human rights (2.6 out of 5). Following our sessions, knowledge on human rights law in general and the impact of Coronavirus laws rises - to an average of 4.5 out of 5. While it is great to know that our sessions are having such a big impact on the knowledge that people working for public bodies have on human rights, it is definitely concerning that they reported such low understanding on average before the session.

Following sessions in Scotland with people with care and support needs, community groups and frontline service staff, it became clear there is an issue with the use of the Scottish Emergency Powers for responding to Covid-19. We, with the support of partner organisations, have written to the Scottish Parliament Equalities and Human Rights Committee (EHRiC) to raise our concerns. Emergency powers are not in themselves incompatible with human rights law. Emergency powers exist to safeguard those most in need of protection. However, for this to be the case, it is vital that, amongst other things, the Scottish Government can assure that the process for using the powers is clear and transparent and that public bodies and officials delivering public services are supported to do this compatibly with human rights laws. You can find out more by reading the letter here, and our Briefing here.

Human rights concerns in health and care settings have been thrown into sharper relief by the Covid-19 pandemic, and our work has certainly shown this. But importantly, human rights must always be part of the conversation and a starting point for all decisions involving people’s care. This is perhaps particularly imperative during Covid-19 when public bodies can reduce their duties relating to people’s care, but it is also crucial in day-to-day life outside of Covid-19 too.

From Covid-19 and beyond

We’ve looked at the value of human rights in health and social care, and how important these legal standards are in ensuring we receive care which respects, protects and fulfils our human rights. We’ve also looked at the changes to health and care during Covid-19 and how this raises weighty human rights concerns. With Covid-19 shedding light on the strain and pressure that our health and social care services are under, these human rights concerns feel so pressing at the moment. But these concerns mirror those which existed before Covid-19 and will continue to exist after.

We must take heed of the challenges faced and lessons learned during Covid-19 and notice where human rights are at play. The bigger human rights questions of accountability and transparency, such as those highlighted by our work in Scotland during Covid-19, deserve attention. They are monumental in scope and impact the rights of everyone. But particular and concerted attention must also be given to the scenarios and situations of everyday people in the smaller places close to home – places of care which we may all find ourselves at some point in our lives. It is in these places that human rights are absolutely integral and can make a huge difference to our well-being and quality of life.

With knowledge of human rights comes great power for the individual. Understanding what our rights are and how public bodies must respect and protect them provides us with a framework through which to engage with the public bodies making decisions about us – about our care, for example – and to feel confident to bring human rights into discussions from an early stage. In this way, human rights are not only duties that public bodies must meet, but they are a positive and transformative tool that individuals can use to bring change and improvement to their life and care. You can hear more about how human rights change lives here.

From this basis of human rights as a tool for change for individuals, we can also understand human rights as the basis of a structural response to care and support needs. Covid-19 has shown us the weaknesses and difficulties that our health and social care services face, especially when unprecedented strain is placed on them during a health emergency. From here, we must use human rights, and the legal framework in which they are embedded, to develop a human rights approach to health and care, one which centres human rights in decision-making and ensures public bodies and officials understand how human rights and their promotion can transform standards of care. From here, we can achieve real change on the large scale to our health and care, ensuring we all receive the dignified and right-resecting care we our entitled to.

You can read our work exploring how the Human Rights Act provides a framework for changing care and lives, particularly when difficult decisions balancing different rights must be made, here.

Download a PDF of this blog here

Find out more about BIHR's work by clicking the buttons below: