The Holocaust and Human Rights: A Time to Remember

 

The end of this month sees the close of the Prime Minister’s Commission on the Holocaust, which is seeking views on what further measures should be taken to ensure the permanent, fitting and meaningful memorial and educational resources around the Holocaust. With reports of increased racism in the UK and increasing negative rhetoric around our human rights law, this is perhaps the most fitting time for us to remind ourselves about the all too often overlooked relationship between the Holocaust and the legal protection of basic human rights.

Universal human rights standards
It is easy to forget that until the Universal Declaration of Human Rights (UDHR) was adopted in 1948, there was almost no system that enabled criticism of – let alone action against – Government mistreatment of people within its borders, provided their own law allowed such abuses. As Professor Klug (2008) notes, “however morally repugnant, Nazi Germany’s racial purity policies were all in accordance with the law.”

Of course human history is littered with examples of the principles and values that underpin human rights – the struggle for dignity and equal respect has been the hallmark of so many social movements since the dawning of civilisation. Yet it was in “debris and ashes of a devastating world war” and the Holocaust that the world community drew up the UDHR, a document “crafted to celebrate the best that humans are capable of” (Klug, 2008).

The UDHR opens with the recognition that “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind” and that to prevent “tyranny and oppression…human rights should be protected by the rule of law”. This was a turning point in the legal recognition of the relationship between people and their governments. As Stéphane Hessel, a French-German diplomat and writer, a concentration camp survivor who helped write the UDHR said:

We had affirmed the universal responsibility of human rights… This was the innovation: we are responsible for human dignity and the rights of the person. It was democracy’s catechism. In other words, we do not govern for the pleasure of power, but to guarantee the exercise of a democratic society.

Human rights here at home
It is from the UDHR that the international system of human rights protections was born, one which heavily influenced the development of our legal framework here at home. At the same time the UDHR was being drafted, the nations of Europe, where the impact of the Holocaust was so keenly felt, also came together to say never again. Championed by leaders such as our Prime Minister Winston Churchill, the Council of Europe was founded to promote democracy and protect human rights and the rule of law in Europe. As the UDHR was being drafted European leaders drafted the European Convention on Human Rights, a legally binding document to protect a small but significant number of fundamental rights. During this time Churchill spoke about the strength derived from “our sense of common…values” and of such a Convention being “guarded by freedom and sustained by law” which ensured that “people owned the government, and not the government the people.”

When the UK parliament passed the Human Rights Act (HRA) in 1998 it made our human rights more accessible for people here at home. It means there is now a duty on all our public bodies to respect, protect and fulfill our human rights. This duty which is not just about central Government departments, but also covers the police, NHS organisations and staff, social services, housing and education officials – the types of public services that we all bump into every day.

The Commission on the Holocaust Consultation
The Prime Minister’s Commission on the Holocaust is a national, cross-party commission representing our whole society. It has been established to investigate whether further measures should be taken to ensure Britain has a permanent and fitting memorial and meaningful educational resources for generations to come.

The Commission is an opportunity to call for the continued support of our educators in teaching about the Holocaust. It is also a real opportunity to remind the Government that human rights are an integral part of ensuring meaningful education about the impact and legacy of the Holocaust.

Human rights education and the Holocaust – what is happening across Europe?
In a 2011 study about human rights within Holocaust education in 26 European countries only the governments of the UK* and the Netherlands responded that human rights education forms no explicit part of the core curriculum. The UK’s official response said that the values related to human rights naturally form a part of school education, but that there was no direct recommendation made by the Government with regard to human rights education. Additionally, all Member States except the UK and Bulgaria, said that they ‘promote projects and initiatives which expressly develop connections between Holocaust education and human rights education’. The UK only stated that the Holocaust is of ‘great importance’ in the core curricula.

The study stressed that the main responsibility for human rights education and the Holocaust lies at the school level, but that visits to memorial sites and museums only can serve as a complement to this. In went on to state that teachers should have access to training in human rights education, supporting them to make the linkages between these and the Holocaust.

Yet human rights is disappearing from the curriculum
Previously the statutory requirements for key stages 3 and 4 stated “The curriculum should enable all young people to become responsible citizens who challenge injustice, are committed to human rights, and strive to live peaceably with others.”

However, the new curriculum has removed reference to human rights at Key Stage 3, instead referring to the “precious liberties” enjoyed by those living in the UK, something which BIHR believes is too vague and uncertain. Although a reference to human rights and international law has been inserted into the final Key Stage 4 text, we remain concerned. During the consultation stages BIHR (and many others) asked the Government to reconsider these reforms and to ensure clear references to our human rights laws and systems, there is no mention of the UDHR, the ECHR, or the Human Rights Act.

Time to remember, time to make the links
Our human rights history is more relevant than ever. This week headlines have been dominated by the news that racism is on the rise in Britain; an important reminder that social progress is not a linear journey. We do not automatically become a more tolerant society as time goes on. Our human rights laws are a vital tool for ensuring everyone has their basic human rights respected and protected and they are as important now as they were 60 years ago.

Right now the Commission on the Holocaust wants to hear views about ensuring meaningful memorials and resources. Now is the time for us to make it clear that:

The legal protection of human rights for all is a direct and lasting legacy to emerge from the horrors of the Holocaust. The Universal Declaration of Human Rights opens with the fundamental commitment that “all human beings are born free and equal in dignity and rights.” For sixty years the European Convention of Human Rights has protected and upheld these universal values, and by 1998 these were made the law of the land here at home through our own Human Rights Act. Now is the time to celebrate and strengthen our human rights journey with better public education and ensure our leaders have the moral courage to preserve what has been so hard won and to safeguard it for future generations.

 

Take Action! The deadline for telling the Prime Minister’s Commission your views is 30 May.

 

On 29 May BIHR’s Director, Stephen Bowen, will deliver a key note speech, ‘Human Rights: Lessons for Humanity’, at the national teachers conference ‘Empowering Young People to Change the World’, hosted by Royal Wootton Basset Academy and the Centre for Holocaust Studies. You can follow the discussions on twitter using #EYP2CtW

*Explanatory note; when referring to the UK in the report it only represents England. This is because the UK as a whole is the Member State of the EU.

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Safeguarding doesn’t mean depriving people of their liberty

By Sanchita Hosali and Natalie Threfall

Imagine living in the same home for 32 years, in a community where you have strong links, as a small business owner, having shared your crafting skills at the local college and served as a magistrate for twenty years. You have developed dementia and when two social workers visit you, you cannot answer all their questions, so you go with them to a care home, and no one tells your family where you are for nineteen days.

In cases like this human rights laws are there to challenge poor decision-making processes. That is what happened in this RR  v Milton Keynes Council (April 2014) where the local authority was found to have breached an 81 year old woman’s human rights. The woman, referred to by the courts as RR has dementia, and was subject to several safeguarding alerts which the safeguarding team failed to investigate. Yet these underpinned her removal from home without authorisation, and without immediately informing her family. The cases shines a spotlight on the importance of local authority staff to understand how their duties under the Human Rights Act should permeate the everyday decisions they are making, especially in relation to safeguarding.

Safeguarding, or not
RR was being cared for by her son, known as SS. In the second half of 2012, social workers logged a number of concerns about injuries RR had suffered. Although referred to the safeguarding team no investigation took place. Then when further injuries were reported in October 2012 Milton Keynes Council decided RR needed to be removed to a place of safety. They also reported the injuries to the police. Two social workers went to RR’s house, although SS was not there. RR was unable to remember how she had been injured and the social workers took her away and placed her in a care home.

Safeguards, or lack thereof
No doubt concerns about neglect or abuse raise human rights concerns; physical and mental well-being, being at the heart of the protections in the rights to respect for private life and the prohibition on inhuman and degrading treatment in the Human Rights Act (Articles 8 and 3). These rights can include a positive obligation to take action to protect people from harm at the hands of others, but this does not seem to have featured in this case. Rather, the actions of the social workers raised issues about RR’s right to liberty. Further, had the safeguarding investigation been completed in a timely manner, the council would have been better informed to decide whether RR’s son was a risk to her rights or whether they were depriving her of a family life by restricting their contact.

The right to liberty (protected by Article 5 of the Human Rights Act) is not an absolute right; we are not free to do whatever we want, how we want to, any time. The Human Rights Act recognises that there may be good reasons to restrict someone’s liberty, such as imprisonment following a criminal conviction or because they need to be in hospital to treat serious a mental health problem. Importantly, the Human Rights Act sets out a number of safeguards that must be carefully considered before the authorities can deprive of someone of their liberty. This includes have having timely access to an independent review of the decision to restrict your liberty. In this case social workers removed RR’s without prior authorisation and it took a further fifteen days for the Council to apply to the Court of Protection to authorise the deprivation of RR’s liberty caused by confining her to a care home. SS wasn’t informed of his mum’s whereabouts for 19 days after the removal, information which he found out after having his solicitor write to the Council.

With RR in the care home a safeguarding investigation was started and continued for eleven months, resulting in restrictions on RR’s contact with her son. After sixteen months, both the Council and police decided not to pursue the allegations.

What the court said
Milton Keynes Council acknowledged that it ‘would have been appropriate and best practice’ to have sought authorisation from the Court first, and said they have reviewed their safeguarding processes and training ‘to ensure best practice in future’. However, as the Court pointed out this is not simply an issue of “best practice”, what happened was unlawful.

The judge described the failure to apply for authorisation of the removal and the deprivation of liberty as ‘deplorable’. He also condemned the failure to inform her son of RR’s whereabouts and the failure to investigate safeguarding concerns from the start. The handling of the whole case he described as ‘woefully inadequate’.

Everyday decisions engaging human rights
The judge found there had been an “avoidable and unlawful interference” with RR’s right to liberty, and her right to private and family life. The breach of RR’s family life rights happened when she was removed from her home. Importantly, the judge said RR’s human rights “are not invalidated, nor are the unlawful interferences with those rights rendered any less serious by virtue of RR’s incapacity.” This echoes the theme strongly emphasised by Lady Hale in the recent Supreme Court judgement in the Cheshire West deprivation of liberty case, where she emphasised that the right to liberty is universal, regardless of disability.

What happened to RR and her son
An independent social worker report for the Court of Protection also said that if SS was not responsible for RR’s injuries, she should remain at the care home until a plan was in place to support her return home. However, the Council decided that RR’s needs were best met by remaining in the care home, and decision which SS said he had little choice but to consent to in light of the Council’s decision not to provide support at home or other options. Whilst the Court of Protection cannot judicially review such care decisions, the judge did order the Council to issue a written apology to RR and her son. In addition the Court removed restrictions on contact between RR and her son, setting out the care support RR will need when visiting with SS.

The wider implications
The significance of this judgement is that it emphasises the fundamental importance of local authorities taking human rights into account in every aspect of their decision making. There are striking similarities with the judgement in Neary, where a young man with learning disabilities accessed respite services and was then detained (much of it unlawfully) by the local authority for a year against his wishes and those of his family.

Worryingly, three years after the decision in Neary, the Court of Protection still needs to make categorically clear that it is unacceptable to make life altering decisions about people’s liberty without engaging the proper safeguards which guarantee that the person’s human rights are at the centre of that decision.

Cases like this show how important it is that staff in local authorities responsible for making everyday decisions about care and support know what duties they have to respect and protect people’s human rights. Rather than being a “stick” to be frightened of, this is something to embrace, and at BIHR we work with health and care sector workers to put human rights at the heart of their practice. You can read about this work, told through the stories of the individuals and organisations we work with in The Difference it Makes: Putting Human Rights at the Heart of Health and Social Care.

Human rights law protects dignity in decisions about care

By Sanchita Hosali and Natalie Threlfall

Today the European Court of Human Rights has ruled that a London borough’s withdrawal of night-time care from Ms McDonald breached her human rights for almost a year before proper processes were completed. Significantly, in McDonald v UK the Court found a breach of the right to respect for private and family life in the provision of support services for a disabled person. The Court emphasises the importance the human right to respect for private life places on dignity, a principle which now clearly applies in provision and decisions associated with welfare support.

Removing the overnight carer

The case was brought by Ms McDonald, a former prima ballerina with the Scottish Ballet. Following a stroke Ms McDonald needed help to get around her house and was unable to use the toilet at night. The local authority – Kensington and Chelsea – originally provided Ms McDonald with an overnight carer, however this care package was suddenly withdrawn and she was told instead to use incontinence pads at night. As she was not incontinent Ms McDonald refused to do this, and understandably felt that to act as though she was incontinent was an affront to her dignity.

Making the link to human rights
Ms McDonald ended up taking legal action to challenge this decision, including on the grounds that withdrawal of care was an unjustifiable interference with her right to respect for her private life (Article 8 of the Human Rights Act & European Convention). This right includes ensuring public authorities respect physical and mental well-being, that decision-making is fair and dignified and takes account of the person. Recognising that there are not infinite resources, this right can be limited provided it is a proportionate response to the situation, which means it’s both necessary and lawful.

During the course of legal action, two local authority care plan reviews decided that incontinence pads were practical and appropriate. The UK’s Supreme Court rejected her case, describing the human rights argument as ‘hopeless’, and in 2011 all night-time care was withdrawn.

Seeking justice, the long road to Strasbourg
Ms McDonald’s last avenue for challenging the decision lay with the European Court of Human Rights. The Court reinforced the need for a broad approach to the right to respect for private life. The Court stressed that respect for ‘human dignity and freedom’ are the very essence of the European Convention on Human Rights, notions which will be increasingly significant with an aging population and finite welfare resources. The Court applied the reasoning from the Pretty case, in which a disabled woman, sought to clarify whether her husband would be prosecuted for assisting her to commit suicide. Although a very different set of issues, the European Court today confirmed that dignity is not only relevant to such extreme cases, but is also important in everyday issues such as decisions about care and support services. The Court found that the local authority decision meant Ms McDonald was forced to live in a way that “conflicted with [her] strongly held ideas of self and personal identity” and therefore her case fell within the right to respect for private life.

The outcome for Ms McDonald
Following withdrawal of the care package for overnight assistance, Miss McDonald’s needs were reassessed as being met through the use of incontinence pads. The European Court ruled this was a decision the local authority was entitled to make as they had carefully weighed Miss McDonald’s needs against the economic consequences of paying for an overnight carer. However, crucially, the decision to withdraw overnight care had been made before Miss McDonald’s needs were reassessed. Therefore for the period before the reassessment, the local authority was not meeting its duty to Miss McDonald and had breached her human rights.

Dignity and the right to respect for private life back at home
In this case the later decision to withdraw overnight care was not a breach of Ms McDonald’s rights, because the proper processes were then followed, and whether this is necessary is a decision that best rests with national authorities. However, The European Court’s reliance on the concept of “strongly held ideas of self and personal identity” sends an important signal to the UK courts and local authorities to make sure people’s basic human rights are given proper consideration, and cannot simply be ignored to save money. Today’s decision, although not a resounding victory for Ms McDonald, underlines the potential power of the human rights safety-net to make sure local authorities put the protection of our human rights at the heart of decisions about care and support.

 

Read BIHR’s Press Statement in response to the McDonald case here.

For information on human rights in health and social care, including real life stories of challenge and change which use human rights without court action download BIHR’s The Difference it Makes: Putting Human Rights at the Heart of Health and Care.  You can also download our Human Rights Pocketbook for Carers, Our Human Rights Guide for Older People and tour Mental Health and Human Rights Advocacy guide here.

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BIHR’s work to bring human rights to life in Mind’s membership magazine

Sanchita quote HR about us all

 

BIHR’s Deputy Director Sanchita Hosali was delighted to contribute to the 4-page human rights special in the latest edition of Mind’s Membership Magazine. The special feature takes a look at the Human Rights Act and how it protects people living with mental health problems from injustice and undignified treatment. As our Deputy Director Sanchita explains in the magazine “Human rights are about all of us, they are the basic protections that we should all have. When we give over power to people in positions of authority, human rights can help to give us power back.” 

Our real life stories on how the Human Rights Act helps in everyday life

Highlighting BIHR’s work with NHS Trusts and advocacy groups, including local Minds, the magazine features many of our real life stories on how the Human Rights Act is helping people with mental health issues across the country, simply by providing the language for discussion with services and not having to go to court. Our work helped Mary’s advocate to get her support once she left hospital to make sure her right to life was protected. Being able to talk about the right to liberty meant Amit was able to challenge nurses who kept telling him to stay on the ward even though he was entitled to leave and simply wanted to visit a local coffee shop. These and many other real life stories about the Human Rights Act supporting people living with mental health problems are explained in BIHR’s The Human Rights Act: Changing Lives and our highly acclaimed Mental Health Advocacy and Human Rights: Your Guide, a practical resource for service users and those assisting them.

Our advocacy guide, recently commended by the Care Quality Commission, was co-produced with partners on one of our Human Rights in Healthcare projects, including Mind at Brighton and Hove. As part of the project we helped the group to develop a human rights approach in their advocacy service, it’s great to see the continuing success of the project featured in the Mind Magazine. As Bill Turner, Advocacy Team leader, says “The team now regularly refers to specific rights when speaking to health professionals and service providers, and has invoked the HRA to raise concerns about physical abuse, the withdrawal of medication and the refusal to allow a patient to leave a ward.”

Working with mental health services: prevention rather than cure

The magazine also features BIHR’s work with NHS Trusts to practice prevention rather than cure a put human rights at the heart of services. For example we support Mersey Care NHS Trust to integrate human rights into learning disability and mental health services. This has included innovate work to support staff and to involve patients and carers in decisions, including issues about risk and how the service is run. As Irene Burns-Watts, Service Director, says in the magazine: “What is really powerful is how we have begun to translate human rights into people’s everyday care: supporting people with humanity, dignity and respect. We are beginning to see results, including a reduction in incidents and in the use of both restraint and medication”

Standing up for human rights

The article also looks at hoSanchita explain HRw human rights tend to get a bad press in the UK, with politicians often quick to criticise them. Sanchita explains how this is hardly surprising given that our rights are designed to limit those with power. She also discusses how suggestions that we should alter human rights laws are unhelpful, and what is needed is a genuine debate to increase understanding of human rights: “Before we talk about getting rid of the Human  Rights Act or changing it, let’s look at what it’s really doing.” Sanchita flags up our Annual Human Rights Tour, free pop-up events across the country which give people a place to get information about human rights, to debate and discuss what they really mean, and how this leads to very different conversations. Find out more about bidding for the 2014 Tour to come to your town this Autumn here.

Find our more

You can find out more about what Mind does and becoming a member, including receiving your own regular copy of the full Membership News here.

You can find out more about BIHR’s projects with partner organisations such as Mind Brighton by checking out our Human Rights in Healthcare Project pages here. Our latest resource features lots of real stories, The Difference It Makes: Putting Human Rights at the Heart of Health and Care, is available here. Finally, if you are living with mental health problems or supporting someone who is get your copy of BIHR’s Mental Health Advocacy and Human Rights: Your Guide here.