Human rights in care - Scottish Care Bulletin article

In this article (reproduced with the kind permission of the Scottish Care Bulletin) Kavita Chetty, Legal Officer, looks at why the Commission has put dignity in care at the top of the agenda.

Scottish Care Bulletin, October 2009: Dignity in Care and the Scottish Human Rights Commission

Human rights sit at the very core of care services. As all care home providers seek to provide a safe, comfortable environment where the dignity of those in care is respected, human rights standards and principles provide a clear benchmark for care provision. Daily decisions and issues facing the care sector such as staffing levels, covert medication, physical restraint, nutritional and personal care and end of life care all carry human rights implications.

Financial constraints heighten these pressures and present an ever increasing challenge to the provision of care. Furthermore human rights are of relevance not only for those in care but also for their families and relatives and for staff. This is why the Scottish Human Rights Commission has taken Dignity in Care as a strategic focus of its work and hopes to work closely with both public and private sector care providers to deliver on the goal of dignity for all.  

The Commission is the national human rights institution for Scotland, created by an Act of the Scottish Parliament in 2006, becoming operational in 2008. We have a general duty to promote awareness, understanding and respect for human rights, and in particular to encourage best practice in relation to human rights. We will fulfil this duty through education, training, awareness raising and research, as well as by recommending changes to Scottish law, policy and practice.  Following a period of consultation the Commission’s first Strategic Plan, which covers the period from 2008-2012, sets out our strategic priorities, one of which is to promote and protect human dignity in Scotland. The care sector is of particular importance to this mission and the Commission now looks to co-ordinate its activities with the Care Commission, care providers, local authorities and umbrella organisations such as Scottish Care in order to increase the sectors ability and accountability to fulfil human rights. 

Care provision in Scotland is currently high on the political agenda and set to face many changes and challenges over the coming years. 

The Scottish Government is undertaking a number of initiatives aimed at improvements in care delivery as well as a review of Care of Older People. In particular, underway currently, the Dementia Strategy launched by the Scottish Government is due to be published in April of next year.  Meanwhile there is activity by the Cross Party Group on Alzheimers convened by Irene Oldfather MSP, with Alzheimer’s Scotland, Crossreach and the Scottish Human Rights Commission collaborating to produce a Dementia Charter of Rights. 

Read the Dementia Charter of Rights in PDF format

The relevance of these developments to the care sector are made clear by the “Remember I’m Still Me” report of the Scottish Care Commission and the Mental Welfare Commission citing that 70% of people living in the care homes they visited had varying degrees of dementia.  Furthermore many of the issues identified in the report, such as the provision of planned activities outside the home, door locking or safeguards around covert medication, have strong human rights dimensions of issues of dignity and autonomy.

The landscape of regulation is of course also undergoing change as the Public Services Reform (Scotland) Bill looks to dissolve the Care Commission and the Social Work Inspection Agency and create in their place a body called Social Care and Social Work Improvement Scotland.  This may provide a further window of opportunity for a renewed look at how to ensure human rights are integral to the National Care Standards and inspection process. 

The overarching difficulty facing the sector however will continue to be the increase in demand for services in line with an ever ageing population paired with the financial constraints of government.  The fear that in an attempt to drive down costs standards fall is a real one which has arisen frequently in the consultation meetings of the Commission. A considered use of the procurement process to include social and human rights based criteria could be an essential step forward in ensuring standards are maintained in the face of spending cuts and explicit regard is given to the end service users rights. The Commission will be convening a group of those with a stake in the issue of the procurement of public services; from individuals affected to practitioners, policy makers, independent experts and others to develop a shared understanding of the problem, solutions and responsibilities of each. 

A more robust approach to the inclusion of social and human rights criteria in the procurement process will help care providers to win contracts based upon the highest standards of care as opposed to solely the lowest price and value for money. In this way the human rights compliant care provision will be rewarded giving care providers a clear business incentive for understanding and embedding human rights.  The drivers for a culture of rights in care home provision presents itself on many levels; legal, reputational and operational, not to mention ethical.  A recognition that the increasing privatisation of care services meant that the care of some of the most vulnerable members of our society was not subject to the Human Rights Act led to legal amendment such that care providers providing services to publicly funded residents are now directly subject to the Human Rights Act, while the care of self funding residents may not be covered. Nevertheless, the National Care Standards are underpinned by human rights principles (dignity, privacy, choice, safety, realising potential, equality and diversity) and all legislative regulation must be interpreted in line with human rights.  It is clear, however, that aside from the legal regulation imperative of getting human rights right it also makes good business sense to ensure the highest standards are upheld and a culture of rights prevails. 

Human rights should not be seen as a risk, threat or burden to care provision but instead as a means of resolving issues and of improving service delivery.  Human rights provide an understanding of how to balance the interests of the individual against other rights and interests such as the health, safety and well being of both the individual and of others, including staff. For example, human rights will permit interferences with an individuals right to privacy or freedom to move around freely where such an interference is the minimum necessary for the protection of the individual, or of others.  This will demand that such a balancing assessment of proportionality is made on an individual basis. Human rights are a natural fit then with an agenda of personalisation of care, as blanket policies applying to all residents must be avoided and wherever possible each individual’s needs are recognised and catered for.  While this will increasingly be put under pressure by cost considerations, having regard to human rights principles may assist in finding innovative solutions to these challenges in ways which ensure care does not fall below minimum standards.       

 The Commission hopes to build a constructive relationship with care providers, both public and private.  We hope to work with you to build an understanding of the issues, concerns and needs of the sector and assist where we can to advance human dignity in care through increasing the sectors ability and accountability to fulfil human rights and empower residents to understand their rights.  We believe human rights can be a tool for decision making, a way of doing things and a means of driving up standards in a way which benefits the interests of all and hope that the sector will engage with us on embedding human rights into the care sector. 

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