Why I love working at BIHR, a small charity with a big impact

Woody Faulkner, Administrative Assistant, British Institute of Human Rights blogs this Small Charity Week

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I have been working as the Administrative Assistant for the British Institute of Human Rights for 11 months and 2 weeks, every day of which has been a journey. Prior to working at BIHR I have worked a variety of different workplaces, some large, some very large, most I did purely to collect a wage, and none I have enjoyed as much as working at BIHR.

We are a small team at BIHR, even by the standards of small charities, but I am constantly amazed by the field of impact and scope of issue that my colleagues are able to respond to. Often at short notice they produce well informed, legally sound but accessibly presented interpretation of the fast paced and complex world of UK human rights law, policy and practice. I have seen how, by providing sober and accurate resources, briefings and response pieces, BIHR have been able to help explain and promote human rights protections and duties to large numbers of people and organisations for whom human rights would have remained something relevant only to other countries. Much of this work would be impossible without the integral role played by our tireless and committed volunteers who donate their time to BIHR, helping us to research breaking cases and generally pitching in with the team to get stuff done.

Our small size is no hindrance to our large impact because of a large and diverse network and community of other small charities around the UK, from one person operations to regional outposts of national groups, tirelessly working to end inequality and injustice, to create a fairer society for all in the UK. I have experienced the breadth of expertise and wealth of passion and drive in this sector through my work organising BIHR’s Human Rights Tour (watch this space for information on the 2014 Human Rights Tour), through BIHR’s annual celebrations for Human Rights Day, and through the great support and engagement from small (and large) organisations signing up to show their commitment to human rights through the Human Rights Charter and the Human Rights Alliance.

Working at BIHR has shown me that being a small organisation, in tough economic times, need not be a roadblock to success if you are rich with commitment to the vision and purpose of your organisation. And that is why I love working at a small charity, and that is why I love working at BIHR.

 

 

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…

 

 

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

Salisbury: Home to the Magna Carta and the Human Rights Tour!

Guest blogger: Tom Bisgood

After two hours on three trains I arrived in Salisbury to attend one of the BIHR Human Rights Tour Events – admittedly the London one might have been an easier journey, but the opportunity to go to a community-based event outside of the capital was one not to be missed.

The day started much as it meant to go on – with lots of debate and discussion among the participants. The first thing we tackled was a biggie – what we felt human rights were all about. For my group this provoked a wide range of views including ideas of fairness, equality, checks on state power and even wars and bombs.

Learning a bit about the history of human rights and the particulars of the European Convention on Human Right and the Human Rights Act set us up for the rest of day. The somewhat tongue-in-cheek history video tracing some of the roots of human rights was apt given that Salisbury lays claim to be home of the best preserved copy of the Magna Carta.

Arguably, one of the most important parts of the day was the case studies and the chance to look at how human rights might apply to a variety of real life situations. I have no doubt from the discussions in my group that this session was extremely useful to those working in social care and community groups – what we learned was so clearly applicable to their work. We explored the case of Alex who, due to his history of mental illness was deemed unsuitable to be a reliable witness in a case against a man who bit off part of his ear and so the prosecution against his attacker was dropped. I don’t want to give too much away in case you get to look at Alex’s case on the Human Rights Tour, but it brought to life how human rights are about the person and looking at how the actions or inactions of officials can make us vulnerable or put us at risk. I’ll leave it there and wish you luck with your group discussions if you “meet” Alex on the Tour!

For me the most eye opening part of the day was the “fact-checking” sessions, where we investigated the reality behind some of the things about human rights in the press, from politicians, on the bus (or two-hour train journey!). The BIHR team were definitely put to the test, with the group throwing out some pretty big issues from FGM to deportation.

For me one of the most interesting bits was unpicking “cat-gate”, where the Home Secretary and many papers talked about how human rights and owning a cat meant a person couldn’t be deported. This case was actually about a Home Office policy which said deportation (here because a man overstayed his student visa, not because he’d committed a crime) should go ahead unless the person is in a relationship of more than two years. The man had been in a relationship and there was evidence to show this, like owning a cat – something lots of people in relationships do! So yes a cat was involved, but in a really minor way, which had nothing to do with human rights. Yet it presented by the media and politicians in a way which undermines human rights, making them seem silly or even dangerous.  And that led us to the case of Abu Qatada. I was surprised to learn how human rights helped the UK deport him to Jordan. Practically the whole world has agreed to the legal ban on torture (of course practice might be different), and this means Governments can’t just send someone to be tortured in another country and turn their face away. What they could do was get proper assurances that torture wouldn’t happen, and by convincing Jordan to agree to the international legal ban on torture – by using human rights – the deportation could go ahead. But none of that seems to have been explained by politicians or the media.

All in all the Human Rights Tour was an incredibly thought-provoking day. It was a great space for a real mix of people to firstly meet up and secondly to learn about and debate human rights, in a far more balanced way than is often seen in the media. At the end of the day I feel I’ve learnt a substantial amount about human rights and really got to develop my knowledge further. So now you’ve finished reading this, what are you waiting for? Book your free place at the Human Rights Tour now!

 

Shhhh…people are saying they support the Human Rights Act

One human rights story doesn’t seem to have featured in this week’s headlines and sound-bites. One which goes to the heart of our country’s values and the future of our legal protections. Interestingly it’s a positive story, and more than that one that involves the Human Rights Act. So what is the good news I hear you ask?!

So the good news…

There is a clear message of support for keeping the Human Rights Act coming out of the public consultations held by the Commission on a UK Bill of Rights. The responses to the consultation which closed on 30 September have just been made public and join those from the 2011 consultation published earlier this year.

Sadly the Commission has decided not to release its analysis of the consultation responses. However, BIHR has been doing a bit of totting up and it looks like the figures supporting the Human Right Act are around the 80-90% mark (with the caveat that we’re not statisticians!) Having read (literally) all the public responses to the 2011 consultation BIHR’s analysis suggests that around 80% of responses said there is no need for a UK Bill of Rights (mainly because the Human Rights Act functions like one) or that if there is to be any new law this should sit alongside and build on the Act.

What are people saying?

Piles of people’s postcard to the Commission on a UK Bill of Rights asking to keep the Human Rights Act safe

The message from the 2011 responses seems to have been repeated in the 2012 consultation feedback. Aiming to help people get to grips with the debates and engage with the Commission’s consultation we launched a postcard action under our #Act campaign, summed up in our slogan “To keep your Human Rights, Act”. The response was great and we were inundated with postcards from people across the country telling the Commission that the Human Rights Act is a vital safety net that protects us all, and especially at times of vulnerability. They told the Commission that the Human Rights Act is about who we are and our values.

Many people also added their own personal messages about why the Human Rights Act is important. Social workers revealed how the Act helps them do their job better. People whose parents fought in the Second World War to secure our rights expressed their concerns about replacing the Human Rights Act with something that takes our protections backwards. Parents with disabled children shared how the Human Rights Act is vital for their families. And there were even former sceptics who having found out more about the Human Rights Act realised its value.

There were just over 2000 responses to the 2012 consultation and together with a similar postcard campaign run by our friends in the Northern Ireland Human Rights Consortium it looks like we made up around 85-90% of the submissions! The 2011 and 2012 consultations together send the Commission a clear message of support for the Human Rights Act to the Commission.

Why does it matter?

The Commission is due to report back to Government at the end of this year. The Human Rights Act has been one of the red lines between two parties in Government. The Commission itself was created to bridge the gap between the Conservative party position to scrap the Human Rights Act and the Lib Dems promise to protect it.

What the responses to the Commission show is that there is public support for the Human Rights Act, and it will be interesting to see how this is reflected in the report. The people, it would seem, are saying keep our Human Rights Act. As the Commission reaches the end of its task, it is clear that the journey of securing our human rights protections and stopping them from being taken backwards is only just beginning.

To find out more and get in on the #Act campaign visit www.bihr-act.org.uk