I’ve written many times before on this blog about the utter disgrace that users of private and independent sector care services are not protected by the Human Rights Act 1998. This is because of a ‘loophole’ which arose out of a controversial ruling by the House of Lords in a case called YL v Birmingham City Council. In that case, the House of Lords prioritised poor old Southern Cross’ right to make a profit* over the rights of an elderly lady with Alzheimers whom they wanted to evict from the care home where she lived because they had fallen out with her family. Mrs YL’s lawyers were concerned that transferring her to another care home in such a late stage of her Alzheimer’s could seriously harm her health, and perhaps even cause her death.
Campaigners have been trying to close this loophole for years now. Every so often somebody will introduce a private members’ bill or an amendment to another piece of legislation to sort it out, and the government of the day won’t get behind it (Paul Burstow MP has been particularly persistent in trying to fix this issue, sadly without success). The Labour government introduced an amendment to the Health and Social Care Act 2008 which said that if care was arranged under the National Assistance Act 1948 then the care provider was ‘public authority’ for the purposes of the HRA. Unfortunately, this didn’t protect people using services arranged under other statutes, such as statutes to provide services to people in their own homes (as opposed to care homes) or aftercare for people who had been detained under the Mental Health Act. In any case, the new Care Bill going through Parliament at the moment will repeal these statutes – and so the amendment which protects service users who are placed under the National Assistance Act 1948 won’t apply any more. Peers in the House of Lords have introduced an amendment to the Care Bill to ensure that everybody using care services are protected by the HRA.
The government is now trying to remove the clause in the Care Bill which would mean that care service users were protected by the HRA. Age UK have launched a petition to retain clause 48 – the clause which would mean care service users are protected by the HRA. I strongly, strongly, urge you to sign it.
Sometimes it’s argued (including by Conservative peers in debates on the Care Bill) that people in care services are already protected by contract and tort law and don’t need the additional protection of the HRA. This is not true. The HRA offers remedies for issues which are not always easy to capture under tort law. For example, issues like violations of ‘dignity’ or the imposition of excessively restrictive or controlling care regimes, issues like restricting contact with family or matters connected with privacy. In some situations positive obligations to protect people from harm or death are stronger under the HRA than under the tort of negligence. Contract only offers a remedy if you are a party to a contract, and when care is arranged by a public authority the service user will not be. And in any case, we might ask, if the HRA confers no additional liability on care providers – why do they lobby so hard against its application in care services? Furthermore, if there really are remedies in tort available, people would use those as they tend to be more lucrative than compensation under the HRA. The arguments that people are already adequately protected without the HRA simply do not stack up.
Some resistance to extending the HRA to care services may come from general ideological resistance to ‘human rights’. But even the most ardent bashers of the HRA surely support the idea of human rights for care service users? The Daily Mail has a longstanding ‘dignity for the elderly’ campaign – but it is the HRA that means that dignity can be an enforceable right. When the press are upset about care homes imposing restrictions on contact with families, it is the HRA – not remedies in tort or contract – which people can rely upon to enforce their right to family life. Some of the abuse at Winterbourne View would be covered by tort law, but far from all of it.
I hope I don’t sound too cynical, but I’m not even sure the resistance to extending the HRA to cover care providers is purely ideological – I smell vested interests. The same vested interests that led Southern Cross to argue before the Court of Appeal that care providers ‘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’ and that ‘constraints imposed on that freedom by Convention rights held by the residents… were inconsistent with the private status of the care homes.’ If the idea that the human rights of care service users are just an obstacle to profit offends you, sign here. And if you think that human rights are no obstacle to profits, what’s stopping you?
*Much good that did them!