The Human Rights Act: Sometimes it’s about everyday life and death decisions

By Natalie Therfall and Sanchita Hosali at the British Institute of Human Rights

 

At the end of our lives, 68% of us will die in hospital. Of that percentage, 80% will die with ‘Do Not Resuscitate’ (DNR) orders in place. These are the sobering figures Lord Dyson quoted when delivering today’s Court of Appeal judgement which confirmed that a person’s basic human rights can be breached when a DNR order is placed on a patient file without consultation.

The Case

Janet Tracey from Family Handout

Janet Tracey, photo from Family Handout

The case (Tracey v Cambridge University Hospitals NHS Trust) was about Janet Tracey, a care home manager, who was seriously ill with terminal cancer and had to be ventilated following injuries sustained in a car crash. In the course of Mrs Tracey’s treatment, when she was about to be removed from artificial ventilation, a DNR order was placed on her records. The removal of the ventilator was successful and Mrs Tracey was able to breathe unassisted. Later on Mrs Tracey’s daughter looked up what was meant by the term ‘DNR’ which she had seen written on her mother’s records. She was distressed to discover that had her mother’s heart stopped (cardiac arrest) during her treatment, she would not have been resuscitated. At the request of the family, the hospital removed the DNR order. Janet, her family and medical staff were then able to discuss end of life matters, and subsequently decided that they would place a DNR order on file. A little while later, Mrs Tracey died in hospital.

The family were concerned that the first DNR had appeared on Mrs Tracey’s records without any consultation. They asked the courts to decide whether this breached her right to respect for private and family life which is protected by the Human Rights Act (Article 8).

The Importance of the Judgment

The first judge who heard the case believed the family’s claim that the DNR order placed without permission violated Mrs Tracey’s right to respect for private and family life was academic because the order had been removed before it had done any harm. Lord Dyson in the Court of Appeal disagreed. He noted that the fact Mrs Tracey’s heart had not stopped while the DNR order was on file was fortuitous, and:

fortuity cannot bear on the question whether Mrs Tracey was sufficiently involved in the decision-making process which led to the imposition of the first notice.”

In other words, Mrs Tracey was lucky, and being lucky does not mean the decision to place the first DNR on file respected Mrs Tracey’s human rights. In the future others who may have been subject to DNR orders without consultation may not have been so lucky. The Court also said it was not enough that the DNR order was cancelled when the family raised concerns. Mrs Tracey’s human rights were engaged by the underlying policy that led to a decision being made without consulting her. It was not the refusal to resuscitate that was being challenged, but the policy that led to decision being made without involving the Tracey family.

Why is this about human rights?

The right to respect for private and family life applies to a range of decisions and issues that affect people’s private life. Crucially, this can include decisions at the end of life. Lord Dyson states in the case:

A decision as to how to pass the closing days and moments of one’s life and how one manages one’s death touches in the most immediate and obvious way a patient’s personal autonomy, integrity, dignity and quality of life.”

Clearly, the right to respect for private and family life was engaged in Mrs Tracey’s case (and other end of life decisions) and should be a vital part of the decision making process.

When deciding whether Mrs Tracey’s human rights had been breached the judge said it is clear from previous decisions in the European Court of Human Rights that the degree of patient involvement in end of life decisions required by Article 8 will depend on the particular circumstances of the case. But this right also carries with it a presumption of patient involvement, and there must be very convincing reasons for not involving the patient.

What convincing reasons?

There is a principle in common law that a patient cannot force a doctor to give them a particular treatment, including resuscitation. Lord Dyson explains this does not mean the patient is not entitled to know about the doctor’s decision, to discuss it with them and if appropriate, request a second opinion.

Importantly the Court also said that just because a patient may be distressed by a discussion about non-resuscitation, as Mrs Tracey was, does not mean they should be excluded from the decision. The doctor may only exclude a person from the decision process if “he or she thinks that the patient will be distressed by being consulted and that that distress might cause the patient harm”.

The Outcome of the Case

By the time the case was heard in the Court of Appeal, the hospital had rewritten the policy regarding DNR decisions. The Court notes that the new policy respects the Article 8 rights of patients by involving them in decisions where doctors think a DNR order is necessary. However, the previous policy which had led to a DNR order being placed on Mrs Tracey’s records without consultation had breached her human rights under Article 8.

Beyond the case – the everyday impact

The right to respect for private and family life is not absolute. It is a qualified right, which means officials can restrict it when there is a law in place to allow such a restriction and when it meets one of the aims set out in the Human Rights Act, e.g. to protect the rights of others. In any event, any restriction of the right must always be proportionate. This means all alternatives should be considered, and the decision maker should not simply jump straight to the most restrictive option.

Following Mrs Tracey’s case, when a doctor assesses whether discussing a DNR order with a patient will distress them enough to cause “physical or psychological harm”, they will have to balance this harm against the potential harm to the patient’s rights if they do not include them in the decision.

Sadly at the British Institute of Human Rights we know that MRs Tracey’s case is not a one-off. We work extensively in the health and social care sector, both with doctors and nurses and advocates supporting patients and families. The issue of DNR orders being placed on people’s files without consultation is something we hear all too frequently.

In one instance a 51 year old man with Down’s syndrome and dementia had a DNR order put on his file without him or his family being consulted. The reasons given on the form were listed as: ‘Down’s syndrome, unable to swallow… bed bound, learning difficulties’. He and his family argued that this was discrimination and that it breached his right to life under Article 2. The case was settled out of court and the NHS Trust apologised.

In another instance a worker for an advocacy group we’ve supported visited her client, an older man with dementia, on the hospital ward. She found a DNR order on his file and when she asked staff about this was she was told that everyone on the ward had a DNR automatically. The client was not aware of the DNR. However his advocate believed he had capacity to take the information on board, as well as having two daughters who had visited but were not consulted or informed. The advocate challenged the blanket use of the DNR orders with staff, explaining that she thought this raised serious human rights issues, especially the right to life not to be discriminated against. The DNR was withdrawn.

Putting human rights into practice

Clearly human rights need to be part of the decisions made every-day by staff in health and social care. A human rights approach helps staff to do this, empowering them to see the law as not merely a compliance issue for lawyers but part of their everyday practice. BIHR’s new resource The Difference It Makes: Putting Human Rights at the Heart of Health and Social Care is designed to help practitioners do this, using a range of real-life stories.

Following Mrs Tracey’s case all professionals involved in DNR decisions need to be aware of their obligations under the Human Rights Act to involve patients in these decisions. It may also be necessary for NHS Trusts and organisations to review their policies on making of DNR decisions to ensure people’s human rights are being respected. This, after all should be at the heart of our health care:

 

NHS Constitution Principle 1: The NHS provides a comprehensive service, available to all… It has a duty to each and every individual that it serves and must respecttheir human rights”

 

 If you found this blog useful please consider supporting BIHR to win a competition for Small Charities Week 16-20 June 2014. All you need to do is send a Tweet which says: #ILoveSmallCharities like @BIHRhumanrights because (and add you reason).
As a small charity we rely on the support of those who care about human rights being respected, protected and fulfilled in the UK. Your Tweet could help us to win this competition!

 

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Carers Week 2014: Human rights inside the courts and everyday advocacy

By Sanchita Hosali and Natalie Therfall at the British Institute of Human Rights

 

This Carers’ Week (9-13 June) we take a look at some important court judgments affirming the human rights of carer givers and care receivers alike. These judgments highlight the role of the Human Rights Act both in challenging poor decisions and its use in the decision making process. But remember it’s not all about the courts, BIHR’s Your Human Rights: A Pocket Guide for Carers is a handy resource to help people in their day-to-day interactions with public services, outlined at the end of this blog.

When the local authority becomes involved in care at home

There have been a number of cases where the proper procedures for altering care arrangements has not been followed. Although this may seem like a box ticking exercise, the result of such procedural failures has been to separate families. In one case a family carer had not been informed where their relative has been taken. The Human Rights Act has important role in such cases, empowering carers to hold services to account when officials have overstepped the mark.

In RR v Milton Keynes Council, an 81 year old woman with dementia was removed from her home without warning and without authorisation. Her son was not informed where she had been taken and their contact was restricted. The court roundly criticised the conduct of the local authority. The authorities had violated the woman’s right to liberty protected by the Human Rights Act (in Article 5) by failing to get the proper authorisation to detain her in a nursing home. They were also found to have violated her right to respect private and family life under the Act (Article 8) by removing her from her home of 30 years and from the family that had been caring for her.

This case bears striking similarities to that of the Neary family who took action against Hillingdon Borough Council; ; where Steven Neary, a young man with learning disabilities cared for by his father, Mark, was taken into respite care and then not allowed to return home for a year. Again the court criticised the conduct of the local authority in this case, which took place 3 years before RR. The court decided that the authorities had violated Steven’s right to liberty by detaining him without authorisation, for a number of months. And both Steven and Mark’s right to respect for private and family life had been violated because Steven had been taken from the family home and they could no longer enjoy life as a family.

As well as the delays sought in authorising depriving Steven of his liberty in the care unit, the court criticised the use of safeguards.. Known as Deprivation of Liberty Safeguards (DOLS, set out in the Mental Capacity Act 2005), these are intended to safeguard people who have been deprived of their Article 5 right to liberty. Mark Neary, Steven’s father, was quoted in the judgement as saying “safeguards seemed good – the reality didn’t. I didn’t know where I was”. It was clear in Neary that the safeguards had been misused. Here measures which are supposed to ensure respect for the rights of people in care were used as a tool to ensure continued detention, and risks to the right to liberty. Clearly, reason for safeguarding are about ensuring people’s basic rights to liberty and to free from harm, in practice this was forgotten, which is why the Human Rights Act was needed to challenge officials and hold them to account.

The Deprivation of Liberty Safeguards

The recent case known as Cheshire West is a significant step in recognising the human rights of those without capacity to make decisions about their own care. It concerned three adults with learning disabilities in ‘home like’ care placements who were none-the-less deprived of their liberty under Article 5. This is because, as the lead judgment by Lady Hale states, disabled people and people who lack capacity to make a decision are still protected by the same universal human rights as the rest of us. As Baroness Hale said, if a care arrangement would deprive her of her liberty, then so too would it deprive the person without capacity of theirs, it doesn’t matter what the intentions behind the deprivation are, or whether the person seems not to protest against the situation:

a gilded cage is still a cage

The case is important for carers. This test about whether a situation is depriving someone of their liberty applies whenever the state becomes involved in the provision of care. Where a local authority assumes responsibility for somebody’s care, they also assume responsibility to properly assess whether their care arrangements deprive that person of their liberty. If they do, then the proper safeguards must be applied. Baroness Hale is quick to emphasise that needing to apply the safeguards to a person’s care is not a bad thing. It is a crucial mechanism for ensuring that the person’s rights are respected while receiving care. The reviews required by the safeguards should be independent assessments which determine whether the persons rights, including to make decisions about what happens to them (Article 8) are respected to the maximum extent possible.

Respecting the wishes of the person in care

A 2013 case highlights importance of taking the wishes of the person in care into account in decisions affecting their life. The substantial issue of the case was whether an older woman with dementia could be allowed to return to live in her home for a trial period. The woman, Mrs Manuela Sykes, a former activist and politician also wished to waive her right to anonymity in order to raise awareness of her experience. The court found that at the time of the case Mrs Sykes lacked the capacity to make that decision for herself, however, taking into account her present wishes and her former strongly held values, it was decided that it was in her best interests to allow her to waive her anonymity: “by nature she is a fighter, a campaigner, a person of passion… she would wish her life to end with a bang not a whimper.”

A recent case from the European Court of Human Rights, McDonald v UK found that a woman forced to use incontinence pads when she was not incontinent had her rights to a private life engaged when she was made to live in a manner which “conflicted with [her] strongly held ideas of self and personal identity”. Once those Article 8 rights were engaged, the local authority providing overnight care had a duty to consider those rights when making their decision or else they would be in breach of them. This case highlights the importance of looking at all care decisions through a human rights lens.

Challenging discrimination against carers

The rights in the Human Rights Act are drawn from the European Court of Human Rights, which is overseen by the European Court of Human Rights. The European Union and the European Court of Justice are completely separate. However, when the ECJ was asked to look at an employment case from the UK involving a carer, they looked at human rights. In Coleman v Attridge Law the ECJ used the ECHR human rights principle of non-discrimination when deciding whether an EU directive prohibiting discrimination against disabled people in employment applied to Sharon Coleman. Sharon, the main carer for her disabled son, worked at a law firm and was denied flexible work arrangements offered to her colleagues without disabled children. The ECJ found that disability discrimination by association is unlawful in the workplace. The case ensured that UK law provides protection against discrimination on the grounds of someone’s association, including caring responsibilities, with a disabled person.

Everyday empowerment and accountability is important tooCarers Guide

Human rights have been relied on in all of the above cases to ensure that lack of capacity or a caring role do not prevent a person from enjoying and exercising their rights. This has been something of a whistle stop tour of recent case law surrounding care, but you can read about some of these cases in more detail on this blog.

Finally, it’s really important to remember human rights are not all about the courts. The Human Rights Act has an important role beyond and before legal action. The law is about our rights and it can empower us to challenge poor treatment and decisions in our everyday interactions with public officials (as well as help officials develop and deliver better services). BIHR’s project work to take human rights into the heart of everyday life has included working with carers and their advocates. In our consultation with n-compass advocacy service in the North East of England:

  • Almost half thought human rights were important to their caring role
  • But less than a third felt confident that they knew what their rights were
  • And only 15% felt confident advocating for the rights of those they cared for

That’s why we produced Your Human Rights: A Pocket Guide for Carers, to help fill that gap. The Pocket Guide is about empowering carer’s with a bit more knowledge about their rights and the rights of those they care for, and carer’s tell us how important this is:

[with BIHR’s Pocket Guide] I feel more empowered and confident on how to challenge, I see human rights can facilitate change (Carer, North East England)

The BIHR guidance helps to equip carers with the knowledge to better secure their rights as well as those of the persons they care for. It’s all about bringing rights home. (Nick Gradwell, carer and expert by expereince)

So this Carers Week let’s spread the word that human rights are what it says on the tin – getting it “right” for all “humans” including carers and those for whom they care.

 

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.

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

Working towards a human rights convention for older people

BIHR recently attended and spoke at a conference hosted by Age UK and Age International looking at the rationale behind having a human rights convention for older people. Hanna Gunnarsson, Intern at BIHR, reflects on the day’s events.

The strong themes of the day were the changing demography of the world (by 2050 there will be more older people than young in the world) the gap in human rights protection for older people, and whether or not a convention should be created to fill that gap. 

The morning started by looking at the case for a human rights convention for older people, which was introduced by Craig Mokhiber older peoplefrom the Office of the High Commissioner of Human Rights in Geneva through a video link. One of the motivations for establishing a convention is the lack of protection that older people have globally and domestically. Although some protection is given to older migrants, women and disabled people due to conventions that specifically protect those rights, there is a gap in protection for older people who do not fit into those categories. Something Craig called “a remarkable omission” by Eleanor Roosevelt’s team when making the Universal Declaration of Human Rights in 1948. John Williams, Professor of Law at Aberystwyth University, noted that the violation against older people’s rights had a tendency to be reduced and illustrated how their fight was often ridiculed in society by being portrayed as a struggle for “right to family life… and your cat”.

In the second session of the day, the focus moved away from the global to the domestic scene and looked at how different parts of the UK works on strengthening the rights of older people. Representatives from Scotland, Wales and England were there to tell their stories about work going on where they are.  The representative for England Lorraine Rogerson (Chief Information Officer, Equality and Human Rights Commission), spoke about how we need to use every tool there is to push the process of a convention forward and that hopefully on the international level there will be a tipping point towards creating a convention. Andrea Nicholas-Jones (Head of Integrated Services at the Welsh Government) and Duncan Wilson (Head of Strategy and Legal, Scottish Human Rights Commission) illustrated how they are both currently working to ensure that the situation for older people in their constituencies is improving. In Wales they are working for a Declaration of Rights for older people, and which aims to set out the rights and concerns of older people, the main theme of the Declaration is the “right to live free from fear”. The Scottish representative claimed that the Scottish Government has good intentions; but in practice the picture is less positive. They are currently identifying the gaps and negotiating how to fill them. People are living longer, which is something to celebrate but also plan and react to. He recognised that proportionality and interference of the right to a private life, family, home, and correspondence (Article 8 of the European Convention on Human Rights) need to be respected and gave an example of a man named Ken who was suffering from dementia and who had 106 different carers last year to support him, which caused him severe anxiety.

Critique of creating a new convention came out during the group sessions. Some thought that there should not be a distinction between people and a new convention focusing on older people would merely make them into victims that were not in charge of their own rights. Others thought that we already have too many conventions that were not properly used to defend our rights and that the UK should focus on creating more protective rights domestically instead.

After lunch, the conference looked at human rights in practice and the effects of other conventions in the UK. Andrew Latto, the Deputy Director for Work, Welfare & Wellbeing in Later life, Department for Work and Pensions, brought about laughs but there was a hidden gravity of the situation that came out during the Q&A when some delegates put him on the spot by asking critical and constructive questions about how the government was acting on improving the situation for elders. Andrew was then followed by our Deputy Director Sanchita Hosali, who looked at the different sources of protection of human rights and how we can combine them and apply them to our everyday life in the UK. She also defined what the “State” is; not just the Government in the strictest sense but public authorities more widely, who are responsible for providing us with a broad range of services, from policing to healthcare, in a way that respects, protects, and fulfils our human rights.

Afterwards, Zara Todd, a Disability Rights Campaigner, spoke about positive outcomes of the Convention on the Rights of Persons with Disabilities; and Jenny King and Melvyn Harries from Derby Seen Ya Rights talked about the success of their commentary video on the rights of the older LGBT community.

Michelle Mitchell, Director General of Age UK finished off with encouraging words highlighting that campaigning for rights does not go unrewarded. She was referring to Doreen Lawrence, mother of the murdered schoolboy Stephen, who during lunch had received peerage into the House of Lords. As a general endnote, emphasis was put on the need to have a culture change in how we see older people, we need to stop the distinction in how we see our own elders (and how we want them to be treated), with how we see the general demographic population of older people as merely bed-fillers in care homes.

At BIHR we couldn’t agree more, and we’re looking forward to working closely with Age UK Brighton and brighton5Hove to launch our Human Rights Tour in Brighton on 10 September. We will be looking closely at the human rights of older people at this event, if you haven’t booked your place you can do so here. We look forward to seeing you in Brighton!  

Small Places Close to Home

Alex Funnell, Intern at BIHR, updates us on a recent radio show about human rights in local communities, featuring the British Institute of Human Rights and our BIHR Human Rights Champion Sam Bond.

More often than noIMG_1776t headlines and political sound-bites focus on the idea that “public opinion” sees human rights are being about “other” people, from situations in other countries to so-called “undesirable groups” such as people in prison, or asylum seekers. Last week Radio Free Brighton aired a programme that tells a different story, one about human rights in the community, one which shows that human rights are relevant to all of us.

Sophie Howes, Human Rights Officer at the British Institute of Human Rights (BIHR), Sarah Faulkner from Assert Brighton and Hove and Sam Bond from Age UK Brighton all featured on the programme.

Sophie began the programme, talking about BIHR’s Human Rights in the Community project, a three year initiative designed to help plug the human rights knowledge gap within voluntary sector groups and local communities. She explained how there is a real affinity between these groups and human rights – often people tell BIHR they know human rights are relevant to their work but they don’t enough about human rights to practically apply in everyday work.  Through the project BIHR supported organisations and individuals in local communities to build up knowledge and capacity on human rights in a variety of creative ways. This included staff training, arts projects, and our hugely successful Human Rights Tour, a series of free to attend events on human rights in towns and cities across the UK.

Sarah Faulkner described the activities undertaken by Assert, an organisation that supports adults with autism and Asperger syndrome in Brighton and Hove, and the impact human rights has had on their work.  Sarah described practical examples of how they had used human rights in their work, for example in negotiations with the local council about the support offered to people with autism and Asperger syndrome. Sarah believes grassroots charities have a role in shedding light on the side of human rights that is largely ignored by the media, a side that helps those in the community that are in need of support.  BIHR and other human rights charities raise awareness of how human rights are relevant to different groups of people and Sarah explains that with a bit of support, such as that given by BIHR, she feels more confident when campaigning for the recognition and understanding of those with Asperger syndrome and autism.

Sam Bond is one of BBIHR Human Rights Bunting on display on Brighton Sea Front after our Brighton Human Rights TourIHR’s local human rights champions.  With the support of BIHR, Sam has been working hard to raise awareness of human rights in her local community and at UK Brighton and Hove. Age UK Brighton and Hove provides a range of services to older people, including advocacy, a crisis service, information and advice, a help at home service, and an IT drop in service. Sam views human rights as protections that we all have against the power of the government, including local authority services. She explained how having a clear understanding of human rights is particularly important for the older people she works with.  Sam wants the frontline workers of the local authority, along with clients themselves, to be aware of human rights and for information about human rights to become more accessible to older people.

Both Sam and Sarah highlight the importance of highlighting the relevance of human rights to people in our communities. Sophie gave examples of cases that illustrate how human rights are here to help us all.  One case involved the intended separation of an elderly couple because they’d been assessed as having differing physical needs which meant they were going to be placed in separate care homes.  They had been married for 65 years and were faced with the prospect of being separated for the first time in their long married life. Their family and the local community used the right to respect for private and family life in the Human Rights Act to campaign against the decision, and the local authority reversed their decision.  Sophie explained that this case showed the power of the Human Rights Act to empower older people and their families to challenge unfair decisions by the local authority, without the need to go to court.

Sophie also highlighted a case involving a young man with autism and learning disabilities who was detained unlawfully for over a year by the local authority following a brief period of temporary respite care whilst his father recovered from illness. The young man and his father went to court to challenge these decisions on the grounds that they violated the rights to liberty and to respect for private and family life under the Human Rights Act. Following this the young man was able to return home. These cases show how human rights have helped improve the lives of ordinary individuals, and how we never know when we might need the protection of human rights.

Sarah, Sam and Sophie remind us how human rights are relevant to all of us. BIHR is working hard to spread the word about human rights in local communities across the UK via our Human Rights Tour. We will be visiting towns and cities across the UK this autumn holding free to attend one-day events on human rights. We would love to see you there. Dates and locations will be available shortly on our website, so watch this space!

To listen to the radio programme please click here.

To see a recent blog by BIHR Human Rights Champion Sam Bond on the human rights of older people, click here.

Women’s rights in the UK: we must keep moving forward

The 8 March, International Women’s Day, is a cause for celebration. It is an opportunity to mark the progress on our journey towards the realisation of women’s rights around the globe. Whilst there is much to celebrate, this year our march feels less like a journey and more like a standstill.

This week the international community gathers in New York to examine the advancement of women’s rights around the world as part of the 57th session of the Commission on the Status of Women. The UK is also preparing to appear before the UN Committee tasked with monitoring the Government’s progress on the promises we have made under the international law on women’s human rights – the Convention on the Elimination of All forms of Discrimination Against Women, or CEDAW.

The Government’s engagement with CEDAW is certainly welcome. As a State which prides itself on international human rights leadership it is important that we too step into the global spotlight and are accountable for action to guarantee basic rights here at home as well as abroad. Less heartening is what this spotlight reveals. The Government’s interim response to the UN Committee ahead of July’s full examination reveals a worrying picture which, in some instances, risks regression rather than progress for women’s rights in the UK.

For example, in relation to employment tribunals the report highlights that, as women are more likely to be low paid they are more likely to benefit from the remission scheme that will allow for some government subsidy of the very poorest people who cannot pay their legal fees.

In another section the report outlines how probation services are ensuring that women who are serving community sentences will be able to serve their sentences in appropriate settings that avoid situations where it is likely for there to be a lone female in a work group.

Are these the mark of a government taking active steps to achieve a more gender equal society? The fact that women continue to make up the poorest people in society, or that women are at risk of violence simply because they are a woman are not signs of progress. More worrying is that these examples reflect a worrying lack of ambition at the heart of government about what is needed to achieve gender equality in the UK.

As Eleanor Roosevelt stated shortly after drafting the Universal Declaration of Human Rights in 1948, human rights begin in small places close to home. The Government’s commitment to engaging with international human rights mechanisms is commendable, however it is important to remember that the point of human rights, including women’s human rights, is that they must be made real here at home.

Threats to human rights laws and institutions isn’t just political bluster

The start of this week was a busy (and worrying) one for anyone concerned with the protection of basic human rights in the UK. It began with a weekend prelude. It was reported that Theresa May, our Home Secretary, is considering making withdrawal from the European Convention on Human Rights (ECHR) a Conservative Party manifesto promise in the next General Election. Followed by Chris Grayling, our Justice Secretary and the Minister responsible for human rights, writing that he cannot conceive of a situation to put forward the reform he thinks necessary without scrapping the Human Rights Act and starting again.

The protections we helped build

If the promises of reported withdrawal from the ECHR and scrapping the Human Rights Act are true, then we have reached a profoundly disappointing moment in UK politics. UK withdrawal from the ECHR would risk unravelling an important and internationally-recognised system of rights protections, one which provides a vital safety net for us all. What Winston Churchill and his contemporaries understood when they created the ECHR system was the need to place limits on the exercise of power, to ensure basic levels of dignity and respect for all, to provide a rule book for Governments. This is what human rights are all about.

Human rights are relevant here at home

Parliament and political leaders of all colours understood this when they passed the Human Rights Act (HRA), a simple and particularly neat piece of drafting which accounts for the UK’s constitutional arrangements. Importantly, the HRA does many of the things its critics are seeking to remedy. For starters it ensures access to our rights is no longer limited to litigation in the European Court of Human Rights. Rather because of the HRA our cases can now be heard in our courts here at home. Perhaps more important, but little known, is duty the HRA places on public authorities not to act incompatibly with our rights (under section 6 HRA). What might at first glance appear as a somewhat technical obligation is in fact pretty simple. Human rights are about ensuring Governments treat us with equal dignity and respect, and the HRA means this is about the way we are treated by NHS professionals, social workers, the police, local authority officials, and all the various other “everyday” ways that we interact with the State.

Whilst endless column inches and political sound-bites have been dedicated, often inaccurately, to extreme cases, what is rarely heard is how human rights are helping people across the country to live dignified and respectful lives, enabling them to secure accountability when powerful officials overstep the line. How many times do human rights stories feature examples such as the mother who used the law to stop the authorities from removing her child simply because she lost her sight, or helping carers access respite, to stop older and disabled people having ‘do not resuscitate’ orders simply placed on their hospital files, or how the law helped end inhuman treatment of homeless people and ensure victims of crime are not denied justice by refusals to prosecute perpetrators of abuse.

It’s not about the law alone, our institutions matter too
As the week began we moved from rhetoric on the law to very real threats to institutional frameworks. In the House of Commons MPs were debating proposals which would effectively permit secret courts in certain cases. In many ways human rights simply add force to those ancient principles that have shaped our legal system for centuries. Principles of the rule of law, equality of arms and that it is not enough for justice to be done it must be seen to done. Yet amendments which would have secured important safeguards were defeated, and the Bill presents very worrying proposals.

At the same time the Lords were scrutinising the removal of an important purposive duty from the Equality and Human Rights Commission, one of the UK’s National Human Rights Institutions. Institutions are important; the law alone cannot achieve the kind of society we want to live in, nor can we simply rely on individuals seeking redress for poor treatment in courts. We need institutional frameworks which help us to achieve prevention and not just cure. This is why we believe the Equality and Human Rights Commission’s general duty is important, it places people’s fundamental aspirations centre-stage, emphasising the basic desire of each of us to be treated with dignity, equality and respect. It focuses on the difference that the EHRC should be making to people’s lives, making it clear that the EHRC must go beyond tick-boxing and bare compliance and speak to people’s sense of shared values, the diversity of our experiences and the common desire to live in a dignified, fair and respectful society. That is why we supported an amendment by Baroness Jane Campbell and Baroness Ruth Lister and others to keep the duty rather than ditching it as the Government suggests. Thankfully, the peers agreed and overwhelming backed the amendment, safeguarding the EHRC’s general duty for now.

The Rule Book for Governments Applies to the UK too

So all in all a mixed bag and that was just the end of Monday! Whether or not the threats to take us away from the Convention or scrap the Human Rights Act are political bluster or a soon-to-be-reality, whether it is legally sound or a nonsense is not really the point. A modern democratic society such as ours must operate by the rules rather than seeking to change them when faced with a result we do not like. This is not only about the example we set on the international stage – one rule for us and another for you – it is about the kind of society we want to be here at home.  Whilst our human rights laws were born out of the devastation of the Second World War, in a very different, they were built to last and to endure. The fact is that human rights challenges remain here at home from inhuman treatment and deaths in our hospitals, to proposed secret justice in our courts, and that rule book for Governments remains as valid now as it did in Churchill’s time.

Rural Human Rights, Urban Envy, and the strange case of a Cornwall Councillor

This guest post has been written by Gemma Finnegan, BIHR Human Rights Champion, Cornwall, @Gemma_Finnegan (Please note it does not necessarily represent BIHR’s views)

 

It’s often said that the greatest trick the devil ever played was making you think Cornwall is near the rest of England. If you’ve ever journeyed down to our beautiful county by rail or car you’ll know that it’s about 2 hours further on from where bone- deep boredom set in, or Exeter, as we Cornish call it! All this tongue in cheek preamble is going somewhere I promise you!

My intention in underlining the geographical distance is to illustrate the differences in attitudes towards human rights than our urban counterparts.  Being at the end of the line as it were means there are cultural and social differences too. Ideas and attitudes permeate slowly – though the internet and social media has seriously speeded up this process. In the past I remember that the AIDS epidemic of the late 1980s only really entered our collective Cornish conscience in the mid 1990s. There has always been a slight delay in popular culture as if we are still on analogue and everyone else is on digital.

Regarding rural attitudes to human rights it is important to point out that 45% of the Cornish population live in settlements smaller than hamlets. This is a very dispersed settlement pattern and delivering voluntary and community sector services is very challenging. I would say that attitudes here in Cornwall tend towards conservatism with a small ‘c’ and a slightly sceptical view of human rights in general, something the ‘city folk’ get worked up about.

What will probably surprise people is the sheer number of voluntary and community groups in Cornwall. We have a population in the region of 650,000 and there are several thousand voluntary and community groups in the county all working towards, though they may not recognise or call it as such, embedding human rights in society by improving a beneficiaries’ lives.

Cornwall has a larger number of people who volunteer than the national average and these individuals selflessly give up their time to talk with, listen to and help others. These actions recognise the innate dignity of the human being and that each of us deserves to live a life free from fear.

It is only within the last 5 years that human rights have started to enter the common language of the voluntary and community sector in Cornwall and it would be disingenuous to not say that there is a long way to go to embed the principals of the articles of the Human Rights Act across the board. There is still too much focus on ‘needs’ and not ‘rights’ and the sector as a whole isn’t yet empowered enough to speak ‘truth to power’ but I feel that the fundamental principles of the voluntary and community sector, wanting to help a fellow human being, are there, and can act as a foundation that will cement human rights in the county.

Addendum – 27.02.13 ( the strange case of a Cornwall Councillor…)

Last night a story broke about a Cornwall Councillor who had said to a disability rights project worker that disabled children cost the council too much and ‘should be put down’.

The righteous anger expressed last night on Twitter (#BrewerOut) and Facebook has continued today in the local, and I should imagine by lunchtime, the national media. The councillor has apologised but continues to insist that he won’t resign as he has apologised and that what was required of him by Cornwall Council’s Independent Standards Committee. If this is the case then this committee has some serious questions to answers about the Council’s attitude to Human Rights and Equality and Diversity legislation.

The attitude of the councillor that he recognises that his comments were ‘insensitive’ but doesn’t see he should take responsibility for his actions illustrate the battle still to be fought in embedding the fundamental principles that we continue to fight for. The response of the residents of Cornwall show that the majority instinctively understand the innate dignity of their fellow humans: 96% in an online poll say he should resign. Having this in the public conscience is an opportunity for our county to have a discourse and its one I intend to grasp!

Let’s remember the opening words in Article 1 of the UN Universal Declaration of Human Rights: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

CEDAW and Ethnic Minority Women in Northern Ireland: ‘From local issues to international solutions’

Mark Caffrey at the Northern Ireland Council for Ethnic Minorities (NICEM) is one of the British Institute of Human Rights’ Human Rights Champions, a group of people across the UK supporting human rights awareness in their local communities. Here one of his colleagues, Ana McCready, an intern at NICEM, blogs about a recent NICEM event to raise awareness of the human rights of ethnic minority women in Northern Ireland and how they can use international human rights to seek positive change. (Please note this blog does not necessarily represent BIHR’s views)

NICEM photo 1Held on 2nd February 2013 at the Belfast City Hall and organised by the Northern Ireland Council for Ethnic Minorities (NICEM), the conference “Ethnic Minority Women in Northern Ireland: from local issues to international solutions” was a successful event. Attended by over 50 women from various ethnic backgrounds, the event was co-chaired by Helena Macormac (Head of Strategic Advocacy at NICEM) and Mimi Unamoyo (Vice-Chair of Congo Support Project UK). The Chairs welcomed the participation of Hannana Siddiqui (Joint Coordinator for Southall Black Sisters, London), Marie-Thérèse N’Landu (Congo Pax, London) and Aleksandra Lojek (Bilingual Community Safety Advocate in Belfast). The theme of the event allowed speakers to share their experiences and views on the rights of black ethnic minority (BME) women, with a specific focus on violence against women.

The event highlighted the importance of using international human rights instruments to address violations of women’s rights in Northern Ireland, in particular the United Nations Convention on the Elimination of Discrimination Against Women (CEDAW). NICEM intends to submit a shadow report to the CEDAW Committee prior to the examination of the UK government in July 2013. The organisation is very keen to ensure that the rights of ethnic minority women living in Northern Ireland are addressed during the Convention monitoring process. NICEM participated in the last CEDAW Committee hearing back in 2008 and raised issues such as access to healthcare, the rights of Irish Traveller women and the rights of women unable to access public funds. This year, we want to build upon that experience and involve as many women as possible in the CEDAW process.

With this in mind the event was designed to specifically look at issues of violence against black and minority ethnic (BME) women. The term ‘violence’ was understood in its broadest sense to include issues of human trafficking, harmful traditional practices and domestic violence.

Initiating the discussion, Hannana Siddiqui commented on the leading and pioneering work Southall Black Sisters have carried out since 1979 challenging domestic violence locally and nationally. She eloquently argued that multicultural sensitivity is no excuse for moral blindness, noting how some culturally accepted practices (such as forced marriages and female circumcision) can be highly damaging to women’s rights. Hannana added that these practices are aggravated by the collusion between State and community leaders. This relationship is guided by a culturally relativist approach, based on a hierarchy of oppression where women’s human rights are constantly disregarded.

Mimi Unamoyo and Marie-Thérèse N’Landu, both human rights activists from the Democratic Republic of Congo currently living in the UK, gave poignant accounts of the ordeal of Congolese women. In Mimi’s worNICEM photo 2ds, women in her country have been experiencing the devastating effects of violence for too long. A hideous consequence of the war in Congo has been the systematic rape of women and young girls, used as a weapon of war because of its destructive impact on whole communities. Significantly, Marie-Thérèse added that  lack of international concern for the plight of women in her country contributes to the severity of the situation.

Finally, Aleksandra Lojek shared her experiences working alongside Polish and other minority ethnic communities in Belfast to reduce the fear of crime and to support victims of hate crime and abuse. As she pointed out, one serious problem faced by victims of domestic violence is the lack of understanding and support from women in their own community. The inability to access services in their native language also prevents some women from receiving the help they need, as domestic abuse is too sensitive an issue to be discussed in the presence of an interpreter.

The presentations were followed by workshops in which participants enthusiastically shared their own experiences, providing valuable information on the real situation of BME women in Northern Ireland and the impact and progress of current anti-discrimination policies. Some of the important points raised in the discussion groups include:

  • The need to empower and capacitate the still quite underdeveloped BME women’s sector in Northern Ireland.
  • The importance of educating BME women and the society in general on how to recognise and combat cultural traditions which hold back women’s rights.
  • How women’s experiences in their countries impact on their lives in the UK.

The conference is expected to be the beginning of a fruitful debate on how to address these very important issues. There will be  follow up  research and events designed to encourage participation of community members in the CEDAW monitoring process so that the voices of BME women in Northern Ireland will be heard by government representatives in a way that might not be possible otherwise. Only then can women help transform the Convention into a truly living document while contributing to setting high standards for women’s human rights.

NICEM have a blog dedicated to their work on the CEDAW process, which is updated regularly, please do check it out!