Capacity, Deprivation of Liberty and Human Rights: “What’s the harm, it’s for their own good?”

At the British Institute of Human Rights this is something we hear a lot, especially when we’re working on the care and treatment received by people with learning disabilities and capacity issues. Usually it’s a question that is well-meaning, but one which reveals deep-grained attitude that fails to recognise the most basic human rights we all have to be treated with equal dignity and respect. On 19 March the Supreme Court confronted this issue when deciding whether the care arrangements for P, MIG and MEG amounted to a deprivation of their right to liberty (also known as the Cheshire West case).[1]

This is an important case. It case is illustrates why and how the Human Rights Act should be the lens through which to view other laws and day to day practices. It has the potential to transform the way people in local authorities and those caring for others (especially involving the Deprivation of Liberty Safeguards and Mental Capacity Act) make decisions about people’s lives which put the person and their rights at the centre of the process, rather than relying on “best intentions”.

The Care Arrangements of P, MIG and MEG

P was a 38 year old man with Down’s syndrome and cerebral palsy who was cared for by 24 hour staff, in a house along with two other residents. He needed help with all aspects of daily life and went on accompanied trips out of the home almost every day. MIG and MEG were teenage sisters with learning disabilities who had been removed from a neglectful home. MIG lived with a foster mother whom the court noted she adored and MEG lived in an NHS facility for learning disabled adolescents. Both girls attended the same college during the day.Closed window

In MIG’s case she never attempted to leave the foster home by herself but would have been restrained from doing so it she had tried. MEG was sometimes physically restraint and received tranquillising medication. P was sometimes restrained in response to challenging behaviour.

Before the case got to the Supreme Court

The cases started in the Court of Protection, where it was found that P’s arrangements did amount to a deprivation of liberty, but as this was in his best interests it should continue, but with safeguards, including review.  MIG and MEG’s care arrangements were found to be in their best interests and not a deprivation of their liberty, and thus not be subject to review.

The Court of Appeal agreed that MIG and MEG’s were not deprived of Liberty, noting the “relative normality” of their situation. The Court also overturned the decision on P, finding that it was not a deprivation of liberty, introducing the idea of comparing P’s life to that of an adult in a similar situation with similar disabilities.

What the Supreme Court said

In P’s case the Supreme Court was unanimous that his situation amounted to a deprivation of liberty, and by a Logo UK Supreme Courtmajority (4 to 3) they also found the MIG and MEG had been deprived of their liberty. The leading judgement was delivered by Baroness Hale and it well worth the read, making it clear that human rights are universal to all and not lost simply because someone may have capacity issues.

The key point those involved in decision-making and delivery of care arrangements should bear in mind is that the test for whether a person is deprived of their liberty is whether they are “under the complete supervision and control of the staff and not free to leave”. The person’s compliance or lack of objection, the “relative normality” of the placement and the purpose behind it are all irrelevant to this objective question.

So what’s the harm?

Well quite a lot actually. As Lady Hale says in her judgement:

people with disabilities, both mental and physical, have the same human rights as the rest of the human race…This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings…Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities…

“If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage. (our emphasis)

Making rights real

Whether this case will indeed transform practice now depends on the extent to which practitioners are made aware not only of this case but of why and how human rights are relevant to their work (and not simply about the legal team). At BIHR we run a range of training and capacity building services and projects and we’ll certainly be raising awareness through our work. We have recently been supporting people and groups to give evidence to the Mental Capacity Act Committee, which found some significant gaps in the protection of people’s human rights. You can read our response to the Committee here and the evidence we submitted here.

Ultimately the British Institute of Human Rights is a charity, with no statutory mandate (or funding) to drive forward work to put human rights at the heart of health and care. That is why we work hard to form partnerships with service providers, practitioner bodies, regulators and advocacy services to help people know and understand their rights and duties and put them into practice (check out our new resource “The Difference it Makes”). Indeed, we were pleased that the Care Quality Commission recently recommended that all advocacy services and detaining authorities should distribute BIHR’s Mental Health Advocacy and Human Rights: Your Guide.

As the new structures for health and social care take root, we very much hope to work with NHS England, the Department of Health, CCGs and others involved in the system, to make sure that people’s basic rights are respected and protected.


[1] P v Cheshire West and Chester Council [2014] UKSC 19

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The Difference It Makes: Putting Human Rights at the Heart of Health and Social Care

Natalie Threlfall guest blogs about BIHR’s latest resource.

BIHR were very excited to introduce in December our new guide to human rights in health care. The Difference it Makes had a high level launch, where it was welcomed by key note speaker, Jon Rouse, the Director General for Social Care at the Department of Health. The guide has been flying off the shelves ever since.

Health reportThe introduction explains why human rights matter in healthcare. The link between the two is not new; in 1948 the UK was championing international human rights at the same time as creating the NHS at home. We can sometimes lose sight of the fact that the person, the human being is at the heart of the healthcare system, but the first principle of the NHS constitution is: “The NHS provides a comprehensive service, available to all… It has a duty to each and every individual that it serves and must respect their human rights”.

This report is the outcome of over 10 years work with our partners in the health and social care field. This raises the question: how did you fit 10 years of work into a guide less than 30 pages long? The answer to this is that over these 10 years, it has been our mission to show that human rights are not a complicated legal issue to be dealt with by judges and lawyers. They can be simple tools that can be used to make everyday decisions. This guide focuses particularly on how healthcare practitioners can use human rights, but can also be used by anyone using services or those seeking to use a human rights approach in their own area of work.

Our guide, then, seeks to show how a human rights approach can be used in health care settings and we have illustrated it with loads of examples of good practice from our partnership work with both public sector bodies and voluntary and community groups in health and social care. To quote ourselves, “put simply, a human rights approach is the explicit use of human rights values and standards in policy, planning and delivery”. We’ve laid out a simple approach to using human rights in everyday decision making: it’s called the PANEL approach…

PANEL

Participation

This is about the involvement of key people in decision making, both the individual and their family/carers. It’s also about making sure these people understand the situation and can have their say. At a human rights level, it about the right to respect for private and family life. Participation can make a huge difference to people’s experience of healthcare.

 

One of our partners worked with Paul, a young person caught in a legal battle to be rehoused due to traumatic experiences in his borough. He took part in a project teaching young people about human rights, and he was able to contact the court and explain how he felt his human rights had been interfered with. Paul was rehoused, but most importantly, he said he felt as though he had a voice in his own case and a right to be heard.

Accountability

Accountability is about ensuring everybody knows who is responsible for ensuring human rights decisions are made. If a public body has duties under the Human Rights Act, it’s about knowing who is accountable for those duties being met. Health service users should be able to clearly identify who is accountable for human rights decisions that concern them.

Balbir, a 48 year old woman one of our partner organisations worked with, suffered a stroke leaving her severely physically disabled and as a result she could not use the stairs to get to her bedroom or bathroom in the house she shared with her two teenage sons. The local authority refused to build a downstairs bathroom and Balbir was left sleeping and using a commode in her living room. After her advocate wrote to the local authority explaining that her circumstances were humiliating and degrading, referring to her right to be free from inhuman and degrading treatment under the Human Rights Act, and the authority agreed to install an accessible downstairs bathroom.

Non-Discrimination

Equality is a key human rights principle, and a human rights approach aims to see discrimination eliminated with particular attention paid to groups who have been made vulnerable.

Our partner organisations have run human rights skills and information sessions for service users living with HIV, young people in the Roma community and carers of older people. Mersey Care NHS Trust developed a human rights based quality of life assessment to tackle discriminatory attitudes in dementia care, with support from BIHR.

Empowerment

Empowerment is the purpose of the guide! It’s about making sure that staff and service users have both knowledge of human rights and the skills and confidence to use human rights in practice. Many organisations we worked with produced their own guides, teaching their staff to use human rights in their own areas of work such as the human rights board game developed by a group of staff and service users from Mersey Care NHS Trust.

Law

A defining feature of a human rights approach is the explicit reference to human rights law. The main law protecting our human rights in the UK is the Human Rights Act (HRA). Four pages of the guide lay out simply how the Human Rights Act works and the main rights relevant in health and social care settings. Using a human rights approach can improve the outcomes for both healthcare professionals and service users; putting people at the centre of healthcare, improving services and in the long term reducing complaints. That’s why it is important that the PANEL approach isn’t simply treated as a checklist but used as a way to think about the totality of your approach.

Over the last 10 years we’ve worked with some fantastic organisations, both charities and NHS Trusts, and we’ve tried to share a little bit of what they do in this report, so if you’re interested in finding out more about the great work being done in this area, please download a copy from our website here.

Let’s remember women’s rights are human rights

 

This International Woman’s Day BIHR’s volunteer Charlotte is writing about the importance of remembering that women’s rights are human rights.IWD

This Saturday, the 8 March, is International Women’s Day and although it is a time to celebrate the great achievements of women throughout history it is also time to remember the work that still needs to be done to make sure women’s rights are being upheld. Ban Ki-Moon, in his United Nations Secretary General’s message this year said “realizing human rights and equality is not a dream, it is a duty of governments, the United Nations and every human being.” So we should use this opportunity to remind ourselves and those in power that violence against and injustice towards women is a human rights issue, and our law – the Human Rights Act (HRA) – has real potential to protect women from violence and to ensure accountability and justice when women fall through the gaps.

Violence against women here at home

Violence against women remains one of the most widespread human rights violations worldwide and is not restricted by country borders, cultures, ages or social status. The UK is not exempt from this devastating abuse of human rights. Just this week the European Union Agency for Fundamental Rights (FRA) released a survey on violence against women which revealed the extensive abuse experienced by women and girls across Europe. The FRA Director Morten Kjaerum said the survey “shows that physical, sexual and psychological violence against women is an extensive human rights abuse in all EU Member States,” and that, “the enormity of the problem is proof that violence against women does not just impact a few women only – it impacts on society every day.”

The UK came joint fifth highest for incidence of physical and sexual violence (44%). Even taking into account measures which have increased reporting within the UK, it is still the case that almost half of British women surveyed stated they had been assaulted. These statistics highlight how important it is women know about their human rights and how they are relevant to the investigation of violence against women, and making sure that public officials do not undermine basic rights.

The Human Rights Act – getting justice for women

Just this week we have seen how important the Human Rights Act has been for helping women to hold the Metropolitan Police accountable for serious failures in the investigation of sexual violence. The two women, known as DSD and NBV, were both raped by John Worby the so-called ‘black cab rapist’. John Worboy was eventually prosecuted and jailed for life in 2009. However, this happened after numerous women reported attacks which were not taken seriously, enabling John Worboy to remain at large. DSD was attacked Worboy in 2003 and NBV in 2007, both under similar circumstances. Both women reported their attacks to the police but neither were believed and their cases were dropped. In 2008 a routine computer check linked 4 assaults with similar circumstance and Worboy was arrested. But by then the police had 105 allegations against Worboy.

Whilst Worboy was eventually investigated and convicted under the criminal law, there still remained serious questions about the accountability of the police for their failures to act. DSD and NBV took a legal case against the police. The High Court ruled that the prohibition on inhuman or degrading treatment, in Article 3 of the Human Right Act included a positive duty on the Metropolitan Police to investigate particularly serious crimes such as rape and sexual assault. It was found that the assaults on the women, and the subsequent ordeal caused by the failure of the police to take the allegations seriously, amounted to inhumane or degrading treatment and breached Article 3 of the HRA. The judge found that systemic failures throughout the police investigation breached the duty to investigate and also found “tangible evidence of both DSD and NHR handsBV not being supported or believed.”

Speaking up for women’s rights, speaking up for human right

This case highlights the importance of the UK’s human rights laws and how the HRA can help us secure justice and redress when our rights have been breached by those with power and responsibility to protect our rights. The DSD and NBV case is a good reminder of why the Human Rights Act is important and the potential it has as a tool for change is realised through action. There are many economic and political challenges in the current climate, so now is the time to use the laws and levers we have to make real changes for women experiencing injustice.