I have been involved in the BIHR’s project Care and Support: A Human Rights Approach to Advocacy since 2015. The knowledge I have gained as part of this project has given me confidence in using the Human Rights Act and human rights language within my role as a Multi Specialist Advocate.


A recent case involved ‘Johnathon’ who lives with a Shared Lives Carer and also attends a local respite facility. The respite staff had alerted the local authority safeguarding team to concerns they had about Johnathon’s placement and as a result, Johnathon had been granted an extended respite stay whilst these concerns were investigated.


The safeguarding investigation was completed and none of the safeguarding concerns were upheld however there were some small actions given to the carer to complete. It was decided that Johnathon would remain in respite until these were completed and there was no guidance given as to how long this may take.


An Independent Mental Capacity Advocate (IMCA) referral was made partway through the investigation and as the allocated advocate I completed a report that highlighted, amongst other things, my concerns about the extended respite placement. The report stated that the prolonged emergency respite was restricting Johnathon’s human rights under Article 8: Right to respect for private and family life, home and correspondence.  


When this did not result in quick action, I requested a meeting to put the case forward again. During the meeting, I explained that although Article 8 rights can be restricted, the restrictions would need to be: lawful; have a legitimate aim and be proportionate. I went on to add that under the Care Act 2014, the general duty of a local authority is to promote that individual’s well-being. Wellbeing in this instance includes protection from abuse and neglect.


This would suggest the restrictions placed on Johnathon to be lawful, with the legitimate aim of keeping him safe. However, I stated concerns that the prolonged nature of Johnathon’s stay at respite was pushing the boundaries of whether this restriction was a proportionate response. By the time this meeting was held, Johnathon had been staying at respite for nearly 7 weeks.


It was agreed that the decision to continue to deprive Johnathon of his liberty was not rights respecting and the requirement for him to remain in respite was lifted. It was felt that any outstanding concerns could be managed without the need for Johnathon to remain at respite and following the meeting, he returned home the same day and resumed his usual routine.


BIHR’s new booklet 'Raising a human rights issue' contains a flowchart explaining how to raise human rights concerns in an effective manner. Using human rights language and breaking the legislation down ensured that all involved in the case could understand the criteria which need to be met when restricting someone's Article 8 rights.

Myan Warrell is a Multi Specialist Advocate at n-compass