Information for others involved in policy and practice issues of older people’s care and support
This section of the materials is written primarily for care policy makers, commissioners of care, the regulators of care and care assessors, all of whom have a role in ensuring that the quality of care and support services is high and the rights of individuals are protected.
A human rights based approach can strengthen policy and decision making and, when properly understood, can assist in the practical implementation of many legislative provisions applying to care services.
As policy makers, commissioners of care and regulators of care you are “duty bearers” in the legal sense to respect, protect and fulfil the human rights obligations owed to “rights-holders.”
Under section 6 of the Human Rights Act it is unlawful for a public authority, or those carrying out functions of a public nature, to act in a way which is incompatible with the European Convention on Human Rights (the Convention). Local authorities, acting as contracting authorities, must therefore take all necessary steps to ensure that the rights of those receiving either local authority or contracted out care services are respected. Statutory bodies, such as the Care Commission, must also comply with the Human Rights Act.
Scottish Parliament legislation must also comply with Convention rights under section 29 of the Scotland Act and be interpreted in a way that complies with Convention rights under section 101 of the Scotland Act. Furthermore, all legislation must be read and given effect to in a way which is compatible with Convention rights and so all legislation must be looked at through a human rights lens.
Much of the legislation you already know and are familiar with has been consciously developed to advance human rights protection and is founded on human rights principles. Redrawing the connections with human rights will help ensure, and not assume, that human rights are fulfilled in the application of the law.
The following pages show how some key pieces of legislation connect with human rights. These pages illustrate how often the legislation strongly reflects the underlying principles and legal tests of the human rights framework.