Loopholes in human rights protection – let’s get it right this time

After two posts yesterday I had promised myself no more blogging until next week, but I wanted to offer a couple of comments on today’s report on the inquity into home care (also known as domiciliary care) by the Equality and Human Rights Commission (EHRC).  I’m really glad the EHRC conducted this inquiry, and they’ve done a really thorough job of it.

Why doesn’t the Human Rights Act 1998 apply to home care?
One of the issues that was flagged up in the report was that the Human Rights Act 1998 (HRA) doesn’t apply to private home care providers, even if the care is funded by a public body.  Effectively what this has meant, is that as local authorities increasingly discharge their statutory community care duties through commissioning of private sector services, the protection offered by the HRA has diminished.  The EHRC’s report makes all the more chilling the decision by the House of Lords in YL v Birmingham City Council that the Human Rights Act would not apply to private sector care providers.  The case concerned a elderly woman with Alzheimer’s who was being evicted from her care home, run by Southern Cross, because the care home found her family difficult to deal with.  By the sounds of things, the family were pretty abusive to Mrs YL as well, and forcing a dementia patient to undergo a traumatic move because of the antics of their relatives is hardly a caring and ‘person centred’ response to the issue.  The case before the House of Lords turned on whether Southern Cross had any responsibilities under the HRA, especially given that her care was funded by the local authority.  The House of Lords ruled not, and they ruled not because – in the words of Lord Scott:

To express in summary terms my reason for so concluding, Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti-discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors. [26]

Oh, and because social care was regulated so we don’t need to worry [32], and because their Lordships evidently weren’t aware that private care providers were shortly to be given powers to detain under the deprivation of liberty safeguards [84].  Here’s a statement from Cherie Booth, acting for the National Care Association who intervened in the case, that still makes my blood run cold:

…Ms Booth stressed that the members of the NCA were not charities, like LCF, but businesses owned by private investors. They should have the freedom that any other private business might expect, to dispose of its resources in the way that seemed to it most profitable. Constraints imposed on that freedom by Convention rights held by the residents, what the Chief Executive of the NCA described in §16 of her evidence as “rights of occupation having priority over the right of the care home provider to freely deal with his business asset”, were inconsistent with the private status of the care homes. (Court of Appeal, [70])

I think the NCA should hang their heads in shame at this submission, especially in the light of what has happened to providers like Southern Cross whose freedom to dispose of their resources in the way that seemed most profitable left thousands of residents highly vulnerable.  The NCA does good work campaigning for increased funding to the sector and improved regulation, but this intervention did them no credit at all.
If ever I need reminding of the massive disconnect from reality of some quarters of the judiciary then I turn to this judgment.  I should add that Lady Hale and Lord Bingham gave powerful dissenting judgments.  The Labour government expressed outrage and – in response to campaigning by civil society groups including Liberty, Justice, the British Institute of Human Rights, Help the Aged (now Age UK) and the Disability Rights Commission (now part of the the EHRC), passed a measure in s145 Health and Social Care Act 2008 (HSCA) which made any private care home provider, providing services commissioned under the National Assistance Act 1948 (NAA) a ‘public authority’ for the purposes of the HRA.  The civil society groups did a victory dance and went home.
This amendment makes me want to bang my head on the table.  I can’t work out if legislators and campaigners were ignorant of the fact a substantial portion of state funded care in this country is not provided under the NAA, but under other legislation like the Chronically Sick and Disabled Persons Act 1970, via direct payments or from the NHS, or if they just felt it was an issue for the future.  The Labour Government had already failed to support two private members bills which would have closed not only the care home loophole but also the home care loophole, and which potentially would also have brought privately purchased care within the HRA (including this bill, introduced by our current Minister for Social care, and discussed previously here).  I think we need to have a wider debate about whether even privately funded care service users need the protection of the HRA.  This time, when the civil society groups start campaigning to close the home care loophole (as I hope they will), I hope they remember to include care funded out of direct payments, and also care (including in care homes) funded by the NHS.  I’d like to see them consider privately funded care as well, but that may be a step too far.  They might also want to think about how human rights can be protected in social care services for children, or that are unregulated altogether and yet still often state funded.
Closing loopholes is not enough
I hope I don’t sound too pessimistic about the HRA here, but closing loopholes is only the beginning.  How many cases have been brought against private care homes using the HRA since the s145 HSCA was passed?  I asked the Ministry of Justice this last year, but they said they didn’t know.  Certainly Westlaw has no recorded cases, and none spring to mind.  Is this because there have been no human rights violations in care homes since the loophole was closed…?  I doubt it very much.  The problem with a legislative approach like expanding the HRA is that it might sound very nice to lawyers, but it’s frankly a bit pie in the sky for the realities of protecting the human rights of this client group, who are very very unlikely to have the resources or rights awareness to litigate.
That’s why the approach suggested by the EHRC of positive obligations of other public authorities is so important.  In particular, the EHRC suggests that local authorities and the CQC have positive obligations to ensure service users’ rights are upheld, even if the care is commissioned from a third party.  The problem here, of course, is that positive obligations to prevent human rights violations only apply where the state knows or ‘ought to know’ about them.  In home care this is particularly problematic.  The inspectors have no right of entry to a person’s home to watch care delivery.  In my view, the regulator should be duty bound to consult a certain proportion of randomly selected home care service users and their relatives, to find out their perspective on the service being offered.  Too often the voices of service users’ and frontline staff are unheard or given less credence than those of service managers.  Often the CQC does contact a few service users, but not always, and to speak to the most vulnerable clients such as those who lack capacity or have problems communicating will take considerable skills and effort.  If anything is going wrong in home care inspectors are highly unlikely to work it out from speaking to management and rifling through the paperwork.  Sticky complaints get tidied away, so do any staff files missing vital references and CRB checks…  And how many home care inspectors check things like continuity of care?  It’s a tough one, as you’d have to look back over several weeks’ rotas for multiple service users.  As for workforce turnover…  These are factors which, as the EHRC points out, have a massive impact on care quality and human rights and yet – by devolving care to the private sector regulators and commissioners can shrug their shoulders and say “not my problem”.
How to protect the human rights of highly vulnerable individuals against those who are meant to be caring for them is a really thorny issue.  The majority of publicly funded home care service users get state funded support because they need assistance in very basic daily activities.  Lord Hoffman once commented that many foundational human rights instruments reflected ‘a certain moral and political philosophy of man as an independent self-reliant agent’.  For many vulnerable people, including those who rely upon care services, this conception of a legal subject is very problematic, as it assumes that people are able to act to protect their own rights.  It is not enough to close loopholes in the meaning of public authority, we have to think of ways to ensure that – in the words of Jackson J in Neary v Hillingdon Borough Council – people are ‘not only entitled but enabled’ to uphold their human rights.
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3 thoughts on “Loopholes in human rights protection – let’s get it right this time

  1. You'll be sick of comments from me – but I want to say a word in defence of the judgment in YL, which I welcomed at the time.

    If you want to provide maximum protection for the vulnerable, it's natural to think the judgment was wrong in a moral sense. If you disagree, it's easy for people to think you're just being stony-hearted, or a lawyer, or something. But the purpose of the courts isn't to protect the vulnerable: it's to apply the law, and in particular to decide whether Parliament did actually intend the HRA to apply to care homes – not to impose their own view (or any individual politican's view) of whether it “should” do so.

    There's a good argument that the courts had got terribly mixed up about what a functional public authority was, before this case. A Parliamentary committee was very critical of where the courts had gone, and recommended the judges focus strictly on the nature of what a body does, not on its links to local authorities. That's exactly what the majority did in YL. In reality, that Parliamentary report was confused – see para. 141 – because, having gone on and on about the need for a purely functional test, it then concluded that something was a public function if “done as part of a government programme”, which is obviously something other than a functional test. It was a good report, identifying a real problem of legal analysis, but then I think marred by distorting its own reasoning to fit a desired policy outcome.

    People might not like the outcome of YL, but I think it's hard to fault the majority legally. The HRA did indeed require a purely functional test, and that's what the majority went for. If what's actually wanted is a “public funding” test, then the HRA needs to be amended (as it has been of course to the extent you've identified).

  2. ive just found out that a friend of mine is working in the care home she is supposed to be shadowing another carer but she said she was getting them ip on her own i said thats not right you shouldnt be with them on your own and she said the manager said it is ok surely this cant be right . what about the protection of the residents

  3. Hi Anonymous, this isn't really an area where the law has much to say I'm afraid. Although there are some minimum standards for staff, they aren't very well enforced and they apply at the level of the workforce (e.g. 50% of staff should have an NVQ) rather than the individual staff member. Certainly there's no minimum standards I'm aware of about shadowing for a certain period of time. A lot of people might find this a bit alarming… but unfortunately that's the state of the law. If somebody got harmed by your friend and the court found she wasn't adequately supervised or trained, the care home could potentially be liable. But unfortunately that's a risk I suspect understaffed care providers may increasingly be taking.

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