Issue 36 March 2007 - Older Persons in Private Care Homes - Why an Inadequacy of Protection?
The Court of Appeal in England has recently ruled that private care homes are not deemed public authorities for the purposes of the Human Rights Act 1998 (the "HRA") leaving around 300,000 care home residents in England and 28,000 in Scotland affected by the outcome and without full legal protection of their rights under the European Convention on Human Rights (the "Convention'').
Victimisation, neglect and ill-treatment of the elderly are a real cause for concern. This is highlighted by the current Joint Committee on Human Rights (the 'JCHR'') inquiry into the Human Rights of Older Persons in Healthcare. A range of Convention breaches in residential homes have been documented that include issues about the right to respect for private life and the right to physical integrity under Art8, and in severe cases, the right to freedom from inhumane and degrading treatment under Art.3 or the right to life under Art.2. Age Concern has estimated that about 500,000 older people are subject to abuse at anyone time in the UK, albeit not all within a care home setting. These reports illustrate the need to ensure the fullest human rights protection for older people as some of the most vulnerable in society.
Campaigners say the law needs to be changed to prevent the closure of homes without the consent of the residents as well as to prevent elderly couples from being separated. Evidence suggests that the distress caused by home closures can result in increased mortality rates. Moving residents from one home to another also impacts upon the residents' rights under Art. 8 as it may potentially deprive them of their home environment and the personal relationships they have there. The current legal loophole created by case law arguably denies the protection of the HRA in giving full legal redress for those in private residential care.
The JCHR report on the meaning of "public authority" under the HRA published in 2003-2004 concluded that the narrow definition given by case law of public authority under the HRA leaves "real gaps and inadequacies in human rights protection in the UK, including gaps that affect people who are particularly vulnerable to ill-treatment". The treatment of older persons in care homes is a case in point. Disappointingly, nearly three years following this report the recent judgment in the joint cases of Johnson and YL has failed to take a broad interpretation of bodies performing a public function in a way which ensures human rights protection in line with the UK's international obligations.
This article seeks to give a broad overview of issues surrounding the definition of a body performing functions of a public nature, and points towards why a change in the law is required, in particular in relation to residential homes for older persons who would benefit from an embedded human rights culture in the provision of their care.
The judgment in the joint case of Johnson v Havering London Borough Council and Secretary of State for Constitutional Affairs and National Care Association and YL v Birmingham City Council, Southern Cross Healthcare, OL, VL and Secretary of State for Constitutional Affairs [2007] EWCA Civ 26 ruled that the change in residents' legal position when care homes were transferred from public to private control was insufficient to amount to a breach of their human rights. The court also found itself to be bound by its own previous decision in the case of R Heather v Leonard Cheshire Foundation [2002] EWCA Civ 366 which held that a private care home was not performing the functions of a public authority under s.6(3)(b) of the HRA.
In the Leonard Cheshire case, the residents of a care home funded by a local authority, challenged a decision to close the home and ultimately disperse the residents. The s.6(3)(b) definition of public authority includes, "Any person certain of whose functions are functions of a public nature", but in Cheshire it was ruled that it did not apply to the managers of the private care home. I t was found that there was no material distinction between the services the care home provided for residents funded by the local authority and those who were privately funded. It was further found that, although the Foundation was performing functions delegated under statutory authority, it was not itself exercising statutory powers.
It was suggested in the judgment that the contractual arrangement between the public authority and the service provider could include requirements to comply with Convention Rights. Furthermore the local authority retained its obligation to protect residents regardless of the situation.
The case has attracted widespread criticism for its narrow interpretation of "hybrid public authority". Age Concern, in evidence given to the JCHR inquiry into the meaning of public authority, argues that the interpretation in the Heather case is wrong because it fails to distinguish between services contracted to a public authority to meet its statutory duties and services merely funded by the public sector. It is argued that in considering whether a private sector service should be deemed ,within the scope of s.6(3)(b), the extent to which the service is governed by regulation rather than private contract should be taken into account.
Ministerial statements during the passage of the HRA suggested that a comprehensive interpretation rather than a restrictive interpretation ought to be made of its application but this case failed to give the broad interpretation sought by the applicants. There is now the anticipated disappointment amongst many that the Court of Appeal has missed another opportunity to close this legal loophole and widen the definition in line with Parliament's intention to apply human rights guarantees beyond the obvious governmental bodies.
Subsequent to the Heather case, the House of Lords provided its leading authority on the meaning of "public authority" in Anston Cantlow with Billesley PCC v Wallbank [2004] 1 A.C. 546. The judgment did not however set out any clear guidance as to how to identify a hybrid public authority. Lord Nicholls, who delivered the leading speech, indicated that in applying the s.6(3) test, it should be considered, "the extent to which in carrying out the relevant function the body is publicly funded, or is exercising statutory powers, or is taking the place of central government or local authorities, or is providing a public service". The character of the function concerned rather than the character of institutional arrangements of the body performing the function was stressed by the House.
The JCHR Report of 2003- 2004 concludes that as a matter of broad principle, a body is a functional public authority performing a public function under s.6(3)(b) of the HRA where it exercises a function which has its origin in governmental responsibilities in such a way as to compel individuals to rely on that body for realisation of the Convention human rights. The report argues that such principles would be consistent with Anston Cantlow which allows for a wide interpretation and is the preferred approach. Unfortunately this was not the approach taken in the recent J and Y appeal.
J and Y Appeal
The appellants, Johnson and YL, appealed against two decisions, made in line with the Heather judgment, that care homes were not exercising a public function under s.6(3)(b). The appellants in J were residents in a care home maintained by a public authority which proposed to transfer the home to a private sector. J claimed potential loss of the protection of the HRA if the home were transferred to a private body and sought a declaration that the HRA applied to private care homes or, alternatively that the local authority would be acting unlawfully if they were transferred to one.
Y was a private care home resident who had been placed there by a public authority. Following a breakdown in the relationship between the care home and Y's relatives, the care home sought to terminate the contract for Y's care and to remove her. It was argued by Y that this would be a breach of her Art.8 rights. Both J and Y's claims were rejected at first instance.
The Court of Appeal decision held that the transfer of control from public to private did not mean a loss of protection under Art.3 of the Convention as redress would be sought through the criminal law or through the National Assistance Act 1948. It was also found that it was doubtful whether Art.8 placed the state under an obligation beyond that required by domestic legislation and therefore there was no loss of direct action for residents in a private care home against their carers. The change in the residents' legal position, when homes were transferred from public to private, was insufficient to amount to a breach of a Convention right.
It was found that the court was bound by Cheshire in finding that a private care home was not performing the functions of a public authority under s.6(3) (b). The secretary of state intervened in the case to point out that the decision that the home was not a public authority could not stand in the light of the Lords' decision in Anston Catlow. It was found, however, that the case of Anston Catlow did not overrule Cheshire as in Cheshire the question addressed was whether a private act performed by a private body, such as the carrying out of a contract between the resident and the home, could become public because it was assisting a public body in carrying out its functions. This issue did not arise in Anston Catlow While domestic rules of precedent prevailed, in any event, Convention jurisprudence was not seen to require a finding that the care home was a public authority.
Lord Buxton's compromise position in Johnson and YL does not exclude private bodies from exercising public functions but moves away from questioning whether the performance of a particular function falls wholly under the public authority umbrella. The appeals were dismissed although it was recognised that the two cases should be referred to the Lords because of their public importance.
A Justified Restrictive Interpretation?
Lord Buxton gave the leading judgment of the court. He argues that if the shift from public to private provision entailed a breach of Art.8 then all privatisation of services where the government has Convention responsibilities would potentially breach the Convention. This is not, however, necessarily strictly accurate as in order for there to be a Convention breach in privatisation of a service, there would have to be a victim or potential victim in that particular instance. This clearly falls within the range of rights protected under the HRA. In any case this issue would be circumvented if the courts definition of a hybrid public authority was clarified along more broadly functional lines.
Another difficulty highlighted by Lord Buxton with defining a private body as having public authority status is that it will then attract the protection of all Convention rights, including those rights qualified on the grounds of public interest. It is problematic to apply the relativist values of Arts 8-11 to private bodies exercising essentially public functions. As Lord Buxton points out, these Convention rights contain, "language redolent of the powers and discretion of public authorities in the fullest sense of the expression".
A further issue raised by those opposed to a wide public authority definition is the fact that the body cannot be both liable under the Convention and also qualify as victim under the Convention. It is seen as nonsensical for a private body to have Convention rights where it is carrying out a public function which entails the exercising of a Convention right such as Art. 1 of Protocol 1 to dispose freely of its possessions. This approach does not address in what circumstances it was envisaged a body may be classified as exercising a public function for the purposes of s.6(3) of the HRA which specifically provides for such a hybrid body.
While these arguments undoubtedly pose challenges to legislative change, they do not arguably overrule the need for a broad functional approach to the issue which was after all intended by the HRA to ensure protection of Convention rights where the state has an obligation to do so.
Other Routes of Redress?
In his judgment, Lord Buxton outlines what would happen if the care home was in fact a public authority and a claim was brought arguing, e.g. that a resident was exposed to treatment which constituted a breach of Art.3. In this instance, criminal law would be the first port of call and the responsibility of the local authority would be enforceable under the National Assistance Act 1948 giving the local authority the responsibility to provide for the elderly. It is also argued that with a claim for an Art8 breach, the Care Standards Act 2000 exceeds the protection of the Convention right and therefore the residents lose no protection. The same logic applies to the Regulation of Care (Scotland) Act 200 I which establishes a system of care regulation in Scotland against National Standards.
It is also the case that these domestic statutes must be interpreted in accordance with the Convention under s.3 of the HRA. Furthermore, because the Commission for Social Care Inspection or the Scottish Commission for the Regulation of Care in Scotland is a public authority, its inspectors must take into account human rights considerations when making decisions about their registration and inspection of care homes. This "horizontal application" of the HRA, however, is not a freestanding route of redress for those complaining of human rights breaches and will depend on an existing cause of action to get the matter to court and for s.3 to be applied.
Nevertheless, private operators are more likely to act accordingly if they are explicitly subject to the HRA rather than through judicial interpretation of domestic statutes or regulations in accordance with the Convention which make only passing reference to human rights standards. Through this mechanism, claiming human rights protection fails to recognise the need to promote the positive benefits to private sector homes of the underpinning of service delivery within a human rights framework. Private operators are unlikely to strive to create a culture of human rights without being directly subject to the HRA and the positive obligations stemming from it.
The judgment outlines the routes by which the UK may be liable for Convention violations of a private body and suggests there are sufficient ways in which the conduct or policies of a private entity may be challenged under the Convention without a need to bring it within the definition of hybrid public authority.
For example, the state may be liable for arranging its legislative system in a way which allows or facilitates a private entity to commit a breach of Convention rights. The UK may also be liable, as although it delegates certain responsibilities, it nevertheless remains liable for the private entity's Convention breaches. For example, in the case of Costello-Roberts v UK, the Convention breach of the use of corporal punishment was found to have occurred in the state's exercise of its obligations under Art.2 of Protocol 1 to secure educational provision.
Finally, the state may be liable where there has been an inadequacy of judicial provision of human rights responsibilities in that in deciding an issue, the courts must also act compatibly with the Convention under the HRA
It is doubtful, however, whether a public authority would be liable for the breaches of a private provider if the public authority had taken reasonable steps to ensure that contracted out services complied with Convention rights.
Following the Leonard Cheshire judgment, the government issued guidance drawn up by the former Office of the Deputy Prime Minister for public authorities on using contract specification in an attempt to secure compliance with the HRA through the contracting of human rights responsibilities from local authority to private provider. The purpose of this guidance is to provide a higher degree of certainty as to what is expected of private service providers.
Age Concern has highlighted that the guidance has not been widely publicised or used and is, in itself, subject to limitations. There is concern that, through the course of negotiations between the local authority and the care home provider, the guidance ends up being unenforceable and inconsistent.
A further problem is that it is unclear how a care home resident, who is not party to the contract, could take legal action in response to a breach of the contract specification. While this may be a possibility under the Contracts (Rights of Third Parties) Act 1999 in England or the principles of ius quaesitum tertio under Scots law, it is possible to contract out of this. A third party right is clearly far from an ideal form of redress for a breach of a fundamental right.
Furthermore, private self-funding residents do not benefit from the government guidance as they have no contractual relationship with the care provider and are unlikely to have the bargaining power to have contracted human rights terms. For these privately funded residents even an amendment or an interpretation of s.6(3) (b) will not necessarily give legal protection and it may be that another approach would be to amend the Regulation of Care (Scotland) Act 2001 or the Care Standards Act 2000 to deem the care provider as performing a public function. Another indirect approach suggested by Age Concern would be to require regulatory bodies to monitor compliance with the HRA and ensure there are human rights contractual provisions between private residents and care homes, breaches of which would be reported and dealt with by the regulatory body.
The Need for Change
Age Concern's report "Rights for Real", published in May 2006, highlights the importance of human rights law to older people who are particularly dependent upon public services. Breaches of Convention rights in care homes range from mixed-sex bays and wards, inadequate nutrition, the withholding of personal expenses, issues of privacy, discrimination, and the moving of patients from one ward to another or one home to another. The ]CHR inquiry into this issue will further highlight the range of human rights abuses to which older persons are exposed. Recent statistics published by the Scottish Care Commission revealed that homes for the elderly account for most complaints that are upheld. The private sector accounts for most complaints, with 37 per cent of privately- run care home services having a complaint against them upheld compared with just 11 per cent of council-run services. This suggests that an evidence-based approach dealing with the gaps of human rights protection is required and that the courts ought to find ways in which to ensure adequate protection in line with the UK's international obligations.
International treaties and covenants impose legal obligations on the state. The UK has ratified the UN Covenant on Civil and Political Rights, providing the right to respect for private and family life, as well as the International Covenant on Economic, Social and Cultural Rights which gives it clear obligations to take progressive measures to, amongst other things, provide an adequate standard of living and the enjoyment of the highest attainable standard of physical and mental health. The UN Principles for Older Persons also provide a bench mark of protection against which progress of the state can be measured. Obligations under the European Convention on Human Rights are to ensure that remedies for breaches of Convention rights are "practical and effective". It would be hoped, therefore that the protection of vulnerable older persons in private care homes provide clear circumstances in which the courts should have regard to these broad objectives and seek to strengthen the protection of human rights where it is so evidently required.
Arguably there are other routes to legal redress for those in private care other than through a public authority definition, but these are far from satisfactory either in being a realistic and effective route for an individual or in ensuring that private care homes have certainty as to what is expected of them. By relying on legal challenges of the individual, the emphasis is on the legal duties of the service provider rather than the effective protection of the rights of the end user. Individuals ought to be able to raise human rights concerns directly with their service provider rather than through complex and indirect legal challenges. In this way human rights can be used as a tool to bring about a culture change in the service being provided to them.
The importance of developing a human rights culture within care homes to raise standards cannot be underestimated. The realisation of this through training, and the scrutiny of policies, procedures and practices will not be implemented by private care homes without a clear obligation to do so. The Department for Constitutional Affairs ("DCA"), the newly created GB Commission for Equality and Human Rights and the Scottish Commission for Human Rights could potentially play an important role here. For example, the recent DCA publication "Human Rights, Human lives" gives public authorities best practice examples which could be helpful to private care homes in developing a framework of values and a culture of respect for human rights in their service delivery.
The growing concern that the outsourcing of public services is causing a gap in human rights protection is highlighted by the most recent JCHR short inquiry into the meaning of public authority under the HRA. Age Concern is urging the government to pass legislation which will consolidate the definition of public authority across all the equality legislation and the HRA to widen its scope. The Equality Act 2006 has been a missed opportunity to do this. In the interim, it is hoped that the House of Lords may take steps in a Johnson and YL appeal to resolve the issue for private care home residents as some of the most vulnerable sections of our society.
The challenge for addressing this issue lies in transforming human rights from being "theoretical and illusory" to "practical and effective". As it stands without a change in the judicial interpretation of the public authority definition under s.6(3) of the HRA, vulnerable older persons in care, lack direct legal redress to breaches of their human rights and the potential for a culture of abuse rather than embedded human rights values.