In a Report published on the 27th Jan 2014, the Joint Committee on Human Rights says that the Care Bill must ensure that all providers of publicly arranged or paid-for social care services are bound by the Human Rights Act.
Dr Hywel Francis MP, the Chair of the Committee, said:
“Whilst acknowledging the measures in the Care Bill which will enhance human rights, my Committee regrets the Government’s reluctance to fill a significant gap in human rights protection for a particularly vulnerable group. The Human Rights Act currently does not protect hundreds of thousands of people who are receiving care which has been publicly arranged or paid for, including care provided in people’s own home and in some cases in residential care homes. The Care Bill which is currently before Parliament should be amended to ensure that this gap in protection is urgently filled.
However, the government has won a vote to block an extention of the Human Rights Act 1998 to people who pay for their own care or use independent home care agencies. Norman Lamb argues people can challenge their provider through their contract. Therefore inequality to protection under the Act will persist.
The Human Rights Act (HRA) 1998 makes it unlawful for public authorities to act in breach of the fundamental rights and freedoms set out in the European Convention on Human Rights. Problems have arisen as original definitions of what constituted a ‘public authority’ were too narrow and excluded private and voluntary sector providers leaving many individuals outside of the protection offered by the Act. This loophole has been partially addressed in the Health and Social Care Act (2008). Section 145 of the act provides that individuals placed in an independent care/nursing home by a local authority are covered by the Human Rights Act 1998. To be covered the service user much be placed in residential accommodation under Part III of the National Assistance Act 1948. However, section 145 does not confer human rights obligations on other independent care providers contacted by the local authority, therefore, independent domiciliary care agencies will continue to fall outside of the Human Rights Act 1998. This amendment did not address the issue of individuals who receive publicly arranged social care in their own home, for example, by personal assistants employed under direct payments or as part of an individual budget. Therefore working in a manner consistent with human rights in an individual’s home is left to the discretion of the provider. The Care Bill provided an opportunity to rectify this.
The need for change was well made by the British Institute of Human Rights in 2008 when it suggested individuals receiving care services in their own homes are vulnerable to abuse. The BIHR argue that ‘those who remain outside of the HRA have no direct legal remedy under the Act against those providing care. Consequently, they are unable to directly challenge these shocking abuses as violations of their human rights’ (p3). The potential impact on the quality of care provided by these individuals is made explicit when the BIHR states ‘of equal importance is the fact that these providers are not given any encouragement to develop a culture of respect for the human rights of their vulnerable service users’ (2008, p.3).
Whilst it would be easy to dismiss such concerns as old news, more recent findings suggest little has changed for some. The Care Quality Commission (CQC) first expressed their concerns regarding unacceptable standards of care provision in individuals own homes in their State of Care report published in 2012. Whilst CQC was able to report on significant improvements within provision in a subsequent report on home care provision in 2013, ‘Not just a number’, it found some care still fell below the standards those who use services have a right to expect, especially for those individuals with complex needs and dementia.
We currently have a two tier system of care provision where some users of services are entitled to have their human rights protected, as conferred under the Human Rights Act 1998, whilst others are excluded in the name of the free market.
Surely recent experiences tells us the protection of those most vulnerable cannot be left to the free will of the market?