Inching closer to closing the human rights loophole in care services…

Time for an update, I think, on progress towards ensuring that the Human Rights Act 1998 (HRA) applies in care services.

This is an issue which has had so many twists and turns it’s beginning to feel like a rather tedious roller coaster.  I have covered many developments (and backslides) on this blog before.  A short version of this tangled tale goes as follows.  When the government introduced the HRA, it was designed so that public authorities would have to act compatibly with the European Convention on Human Rights (ECHR) when performing acts of a public nature (s6 HRA).  It provided a new form of judicial review, whereby people could bring court proceedings if they felt a public authority had violated their ECHR rights.  The problem was, it was unclear what a ‘public authority’ was…  Over the last few decades, a growing number of state functions have been ‘outsourced’ to private providers, and this is especially true of local authority (and increasingly also NHS) functions to arrange care and support services.  Over 90% of care and support services arranged by local authorities are now provided by the private sector.  When the government passed the HRA they were very aware of this increasing ‘privatisation’ of state functions, and so the HRA was supposed to apply to any kind of body (be it public or private) who performed ‘functions of a public nature’ (s6(3)(b)). Private entities which perform functions of a public nature in the meaning of the HRA are sometimes known as ‘hybrid public authorities’.

There has been a lot of litigation about the meaning of ‘public authority’ under the HRA, as defendants have tried to avoid obligations under the HRA.  In 2007 a case concerning Mrs YL and Birmingham City Council came before the House of Lords.  Her care provider, the now-defunct Southern Cross, wanted to evict her from her care home because of a row with her family.  Mrs YL’s supporters were worried about the impact such a move might have on her, as she was 84 years old and had advanced Alzheimer’s disease.  The Court of Appeal heard from the National Care Association that the ECHR would interfere with the ‘freedom’ of care providers to ‘dispose of its resources in the way that seemed to it most profitable’.  The House of Lords concluded that even when care was publicly arranged and funded, care homes were not performing functions of a public nature, and the HRA did not apply.

This ruling caused outrage among a wide range of NGOs, who formed an alliance campaigning to close this ‘loophole’ in human rights protection for care service users.  The Labour government introduced an amendment to the Health and Social Care Bill 2008 which meant that when local authorities arranged care under the National Assistance Act 1948, the care home was performing functions of a public nature and the HRA applied.  The trouble was, care services can be arranged under an array of different statutes, and the YL ruling seemed to still apply to many of them – especially to home care.  Various attempts to close these later loopholes in Parliament failed (if you search for ‘loophole’ on this blog you can find my efforts to document these attempts).

As the Care Bill wends its way through Parliament, this issue came to a head once more.  The Care Bill will repeal almost all the old community care statutes, as they were a chaotic hotchpotch, and replace them with a single structure which should be clearer and easier to navigate.  The problem was, this would actually repeal the National Assistance Act 1948 which the Labour amendment to close the loophole hinged on, so campaigners would be back to square one with the HRA potentially applying to no private care providers.  The House of Lords introduced an amendment (Clause 48) which would have meant that all care services were hybrid public authorities.  The government sought to remove the clause, and a campaign was launched to retain it (blogged about here).

Until very recently the government – including Liberal Democrat Minister for Social Care Norman Lamb – were stubbornly insisting that the HRA did not belong in care homes, and that there was no need for it anyway as the law offered plenty of other means of protecting human rights.  An awful lot of guff was talked in these debates, with some who should know better claiming that people in state arranged care services could have recourse to contract law (despite the contract being between the local authority and the provider, not the service user), or tort law (despite the fact that there are many differences between human rights law and tort law – the meaning of ‘deprivation of liberty’ being a case in point) or judicial review (ditto).  (If people could use tort law, they surely would, as it tends to result in much larger damages being awarded.)  It has been repeatedly claimed that care service users do not need individual remedies like the HRA because care services are regulated.  But regulation is hardly an alternative to litigation – a regulatory body does not respond to individual complaints, nor can it conduct the kind of detailed analysis of an individual’s situation which is typically required for a human rights claim.  The regulator could hardly stop a care home from evicting Mrs YL. And at a symbolic level, the message sent out by saying that human rights don’t apply in care homes is terrible; this is probably the one place that even those who usually bash human rights would agree that they have some place.  The care sector profits enormously from state funded care, and yet the profit-principle and anti-rights ideology appeared to be paramount to this government.

I am not sure what magic was worked behind the scenes but the government appears to done a U-turn on this issue.  I suspect that Paul Burstow MP and various other MPs and peers (especially those on the Joint Committee on Human Rights), along with the alliance of NGOs and perhaps the Equality and Human Rights Commission, may have had a part to play in winning over hearts and minds.  Only a few days after I received a letter from my local (Liberal Democrat) MP telling me that he agreed that human rights should not apply in care homes, the Guardian reported that the government would, after all, support the HRA covering (some) care services.

One of the problems with Clause 48, the amendment introduced by the Lords, was that it would have covered all care providers, even where the care was wholly privately arranged and funded.  This is an issue that has also scuppered earlier efforts to close the human rights loophole (which makes one wonder why Clause 48’s drafters did not take not of this issue, but anyway…).  I personally support the principle that the HRA should apply to all providers, regardless of whether or not care is publicly arranged, because I feel that human rights law can gain traction on many problematic issues in the care sector which other forms of law simply do not.  However, there is a long standing Anglo-American tradition that human rights do not apply in the private sphere, and should have no ‘horizontal’ application’ between private persons.  Other forms of law – it is claimed – should apply in the private sphere instead (such as tort, contract and regulatory law).  Yet even among those who generally hold this view there are some who argue that in certain situations of ‘hierarchical subordination’ the ‘relationships between private parties should be regulated in ways that resemble the human rights paradigm’ to protect the rights of weaker parties (Osiatyński, 2009).  I would argue that care services are such a situation, as the disparity of power between provider and service user is huge.  I would also argue that in such a heavily regulated sector, it is reasonable to place human rights obligations on care providers, in a way that it might not be for other private individuals: they should know better than to violate human rights, or they should not be in the business at all.

However, many would disagree with this principle – including the Joint Committee on Human Rights, who recently rejected the Clause 48 amendment on the basis that ‘human rights law does not require that Convention rights should be directly enforceable by individuals against private care providers where there has been no involvement by a public authority in arranging or paying for that care.’  And so, it was back to the drawing board, and the government introduced new amendment to effect its U-turn.  The new amendment is rather inelegant, to cope with the variety of ways in which care is or will be arranged in the devolved legislatures, so I haven’t reproduced it here.  In essence it applies only to registered providers, whether providing care in the home or residential or nursing care, where that care is arranged or paid for by a local authority.  I am not quite sure what is happening for people whose care is arranged or paid for by an NHS body (for example, under Continuing Care), and it looks (to me) as if those who pay for care out of a direct payment will not be covered,, so it seems to me as if there are still some loopholes where publicly funded care may not be covered (anyone else got any thoughts on this?).  Alex Ruck Keene has assured me that the Care Bill does include care funded by direct payments.

It also seems to me that the courts still might find that ‘wholly private’ care engages the HRA where care homes are given authority to detain residents under the Mental Capacity Act 2005 deprivation of liberty safeguards (see paragraphs 69-70 of the ruling in YL).  It’s an interesting question what happens if they should have been using the deprivation of liberty safeguards, but were in fact de fact detaining residents without any lawful authority.  If they should have been using the safeguards, but were not, then the person’s Article 5 rights are violated, but if the care home is only a ‘public authority’ under the HRA when it is actually exercising legal powers of coercion (not when it should be exercising them) then it is unclear what legal recourse the person has against the provider (as the Bournewood case showed, the tort of ‘false imprisonment’ is not co-extensive with Article 5 ECHR).  Logic suggests that the HRA may have to apply when care homes should be using the safeguards, as well as when they actually are.  It is an interesting question whether, in circumstances where the HRA kicks in because the safeguards are (or should be) in use, other rights than Article 5 rights are protected…  I suspect we may, in the fullness of time, see litigation on this point, as Article 8 disputes are rarely far from Article 5 issues.

So, if you believe (as I do) that the HRA should apply even the ‘wholly private’ care, then there is still work to do.  I’m personally unclear whether the HRA now applies to publicly funded care which is arranged by the NHS; I suspect it does not, but would like to be contradicted.  I think there is also scope for ‘wholly private’ care to come under the HRA when a person is deprived of their liberty, but questions remain about what this means.  But, never let the best be the enemy of the good… let’s that this precarious and hard-fought-for progress can be retained and built upon in the future.

[Update: On 15th May the Bill was passed, the Care Act 2014 is now law]


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