It’s small charity week: Why I love working at BIHR

By Stephen Bowen, Director, British Institute of Human Rights

 

Small charities are the unsung heroes of our civil society.medium_SBowen_0

In small places, close to home they have an impact way beyond their limited resources. Small national charities often lead the way in developing solutions to the challenges we face. They are remarkable for their willingness to focus on the often neglected and sometimes unpopular causes, working to champion the rights of people who are most at risk of disadvantage, poverty and exclusion.

The British Institute of Human Rights is a small national charity with a big Impact.

Across the UK, we help people and organisations understand that human rights are the standards by which a decent society should live. We help people understand that our Human Rights Act is a 21st Century Bill of Rights – a modern Magna Carta which celebrates our contribution to the rule of law over the centuries but which also recognises that we still have much to learn.

I love working for a small charity because of the sense of team work and the shared commitment that exists across the whole BIHR family. It is great to work somewhere that can respond quickly to changing circumstances, and which can stay true to its values however difficult the challenges become. And I love working for BIHR because we are connected, through our UK-wide Human Rights Tour and practice based work, to so many other people and organisations who are passionate in their belief that every member of the human family is of equal value, and that universal international human rights are ours to cherish and defend.

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!

 

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.

 

Respecting the right to family life: the Human Rights Act, parents with learning disabilities and access to justice

By Sanchita Hosali and Natalie Threfall at British Institute of Human Rights

“Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives.” (Huang, 2007)

The right to respect for family life protected by the Human Rights Act (in Article 8) goes to the heart of decisions involving children and care, reminding us to consider the both the rights of a child as an individual and their rights as a member of a family. Yet it is a human right that is often misunderstood in practice (and sometimes maligned in headlines and sound-bites). A recent decision in the family court, Re DE (A Child) [2014] EWFC 6, is a reminder that the local authority and its staff need to understand that consideration of the Human Rights Act is an important part of making fair and lawful decisions that respect the rights of the child and the family.

What happened?

The case concerned D, the child of a couple with learning disabilities. D had been subject to a care plan from birth, and had been living at home with his parents who were supported by the local authority. The local authority had become concerned that D’s welfare was deteriorating and made plans for D to be taken into foster care. This would be followed by a hearing to determine the future of the care plan. The parents’ solicitors asked the courts for an injunction preventing D from being taken into care before the care plan hearing. They said the injunction should be given using powers under the Human Rights Act, because removing D before the hearing was a disproportionate restriction on their right to respect for family life. The first judge rejected this as he did not believe he had the power to grant such an injunction.

Challenging the interim care decision on human rights grounds

At the higher court Mr Justice Baker found that the first judge had limited himself and his powers wrongly when refusing to grant an injunction under the Human Rights Act. Local authorities have a duty under section 6 of the Human Rights Act to make sure all their decisions respect the rights in the HRA. In D’s case the authorities had failed to respect the Article 8 rights to the family (discussed below). Therefore the courts, which also have a duty under section 6 to respect human rights in their decision making, can rely on the Human Rights Act to prevent an unjust decision. This means if a judge has the power to grant an injunction, a power which has recently been granted to the family courts, then they can grant an injunction under the Human Rights Act.

Did the care decision therefore violate the rights of D or his parents?

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

In cases of removing a child from the family home, looking at the situation through a Human Rights Act lens means recognising that the child and the family have rights which should be respected unless the tests of lawfulness, legitimate aim, and proportionately justify restriction. For example, where a child is at danger of serious harm or neglect the Human Rights Act places a positive obligation on officials to step in and take action (this underpins safeguarding).

In D’s case he was not in immediate danger, nor was there any threat of future danger. Yet he was taken into foster care before the hearing to determine the future of the care plan and the child’s best interests. If, after a full and proper hearing had been carried out, it was found to be in D’s best interests for him to be taken into foster care, the interference with his and his parents’ Article 8 rights would be justified. However, to take him into care when he was not in danger and before evidence could be heard from his parents failed to take the family’s human rights into account.

What does this mean?

D’s case simply (but importantly) clarifies that in such situations parents can apply to the courts for an injunction under the Human Rights Act. Whether the removal decision breached human rights, is a matter which must be decided at a full hearing.

However, it does have a broader significance in reminding officials about the importance of taking human rights into account at every stage of the decision making process. We have blogged before about cases where decisions that drastically alter peoples’ lives have been made before their human rights have been considered and the proper safeguards put in place, such as in RR v Milton Keynes Council where the local authority failed to apply for authorisation to remove an elderly woman from her home. The decision in Re D highlights once again the weight local authorities must put on all rights when making their decisions.

Hold on, there is an access to justice issue too

D’s case also raises access to justice questions, an issue of growing concern with recent changes to legal aid, which have had a particular impact in family and civil cases. Because of the specific nature of the original care plan and the changes that were being enacted, under the Children Act 1989 the family fell into a gap that left them without non-means tested legal aid. As the father had a steady, but low paying job, he was unable to access legal aid and his solicitors and barrister acted pro bono.

Justice Baker highlights this gap as being a real barrier to accessing justice, particularly for adults with learning disabilities involved in care proceedings. Being unable to challenge a local authority’s care decision potentially leaves many families separated and unable to challenge violations to their rights. In particularly serious cases, being unable to contest life altering decisions may also risk falling foul of the right to a fair trial under the Human Rights Act (Article 6), which applies in many civil issues including family law.

At the end of his judgment, Justice Baker specifically calls this point to the attention of the President of the family courts, Sir Justice Munby. This week he made the important decision to suspend proceedings in a case where contact arrangements for a child were complicated by his father’s inability to access representation or translation services (Q v Q).

That case deals with contact arrangements between a father (who was a registered sex offender) and his child. As part of the hearing both sides put their case and evidence to the judge, however in this case legal aid for the father has been discontinued, and without translation or representation he cannot take part in the case. Justice Munby said:

“that there could be circumstances in which, without the assistance of a legally qualified representative, a litigant might be denied [their right to a fair hearing] … these are matters which are required to be investigated in justice not merely to the father, but I emphasise equally importantly to the son, as well as in the wider public interest of other litigants in a similar situation to that of the father here … there is the risk that, if one has a process which is not fair to one of the parents, that unfairness may in the final analysis rebound to the disadvantage of the child.”

As a result, he has suspended proceedings, inviting the Justice Secretary Chris Grayling to intervene in the case and explain how the costs of the case, which is “necessary and fair”, should be met. If necessary, he says, it may be the court, as a public body with a duty to respect human rights as described above, which must meet the costs of the case and ensure access to justice. We await the Minister’s response…

 

 

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.

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.

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

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.

Human Rights Beneath The Headlines – A view from BIHR’s volunteer Charlotte

Human Rights Benath the Headlines

Human Rights Benath the Headlines

On Thursday the 30 January Leigh Day Law, in London, kindly hosted the British Institute of Human Right’s (BIHR) event Human Rights Beneath the Headlines. With so much swirling about in the UK’s media on human rights BIHR decided to respond to the people who want to know more, who read the headlines and wonder if there is more to the story. The audience were invited to send in questions beforehand or to just throw out their must ask issue on media stories during the Q and A style event.

Helen Wildbore, Human Rights Officer at BIHR, was in the chair and joined by Adam Wagner, Barrister and founder and editor of the UK Human Rights Blog, Benjamin Burrows solicitor at Leigh Day and his colleague Elisabeth Andresen, who have worked on a range of cases including prisoner’s rights, the Dale farm eviction and health abuse issues, plus BIHR’s Deputy Director Sanchita Hosali. The panel shared their expertise to look behind some of the cases most often featured in the headlines, as well as shining a light on those human rights cases that rarely make it into the media. The headlines came from a variety of UK newspapers, broadsheets and tabloids, which ran stories on human rights issues.

Read all about it!

To start we looked at headlines relating to prisoner’s voting rights asking questions such as, ‘Why should judges in Europe be able to force us to give prisoners the vote?’ The panellists looked at the legal issues behind the prisoner voting cases and what the ECHR said in its judgement – that the blanket ban on prisoner voting was unlawful rather than all prisoners should be given the vote. The negative headlines on the issue also highlighted the continued confusion between the European Union and the European Court of Human Rights when it comes to human rights law – some questioned whether this was deliberate or not.

Event panellists

Event panellists

Other headlines posed the question – ‘It seems like the Human Rights Act is really only about helping people who should be punished not given more rights?’ As panellist Adam flagged these aren’t cases about damages, they are about justice, often for people who have been at the sharp end of Government decisions. As Sanchita noted, one of the functions of human rights is to help ensure justice and the rule of law in democracies, to protect us all including those who the majority or those in power might deem unpopular. This was echoed by Elizabeth who spoke about cases on Mid-Staffordshire and other major healthcare failings where the Human Rights Act provides families with a vital way of holding the authorities to account. Again, what human rights helps them with is to get an apology for the infringement of their rights or the abuse of their loved ones. In many cases if damages are rewarded they are often small and only in grievous cases.

Immigration and deportation was another hot topic, with so many headlines leading to questions like ‘Is it true that human right’s stops us deporting people like criminals and from having control over immigration? We need to be able to set the rules.’ The panel spoke about how the figures on these issues are fairly complicated and often not as clear cut as presented. The law allows deportation if a person has been sentenced to more than twelve months. In the experience of the panellists successful human rights cases preventing deportation tended to be the exception rather than the norm and often involved issues like the rights of the children of those involved, including British children. Also, stories on this issues can mix up immigration and migration with deportation based on criminal conviction.

Similar issues about facts and figures were flagged when we looked at the UK’s relationship with the European Court of Human Rights. As figures that had been released on the day of the event revealed the ECHR grants very cases against the UK and in general the UK Government does fairly well at the ECHR. The ECHR’s annual statistics showed that 98.85% of the 1,652 UK cases brought to the court in 2013 were declared inadmissible or struck out. Of the remaining cases it found the UK had breached human rights in 9 cases and had not in 10.

The final set of headlines focused on the issue of ‘stories about leaving the European Convention/ Court of Human Rights and maybe having a British Bill of Rights, how would this be different?’ Sanchita spoke about how in these debates in the UK what is often ignored is that the Human Rights Act is important not for its own sake but because it is the promise of international human rights made our law. All the panellist were cautious about debates on a new British Bill of Rights. In principle sounds like a great idea, but is the political climate of negativity about human rights the context for a new law? Some questioned how different a new law to make human rights sound more appealing would be.

Putting the confusion to bed

The event certainly helped to clarify some of the facts behind the headlines. It also gave the opportunity flag up the kinds of cases where the Human Rights Act helps people in everyday life get justice. It was revealing how there are news stories where human rights are of central importance but are never mentioned. Perhaps the media and political debates would be very different if these stories also mentioned how human rights laws help people, such as enabling those subjected to inhuman and degrading circumstances in hospitals and care homes to seek accountability and better treatment. Until then events like BIHR’s Human Rights Beneath the Headlines are very much needed!

NOTE: BIHR would like to thank to everyone who came along, to our panellists and especially Leigh Day for hosting the event.