Article 8 of the European Convention on Human Rights provides:
8(1) “Everyone has the right to respect for his private and family life, his home and his correspondence”.
8(2) “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and
is necessary in a democratic society in the interests of national security,
Like most Convention rights, article 8 is not absolute and article 8(2) provides several qualifications, or ‘justifications’ for proportionate interference by a public authority – justifications which could have been written with local government expressly in mind!
- public safety
- or the economic well-being of the country,
- for the prevention of disorder or crime,
- for the protection of health or morals,
- or for the protection of the rights and freedoms of others”.
The reference to ‘the economic well-being of the country’ may be read now, within the UK, as if it said the ‘area’. However, any interference by a public authority with an individual’s article 8 rights must correspond to a ‘pressing social need’, and be proportionate in pursuit of a legitimate aim in order to count as ‘necessary in a democratic society’. Thus proposals which will have a financial impact one way or the other cannot be justified just because savings or income is desirable – it must be more important than that. It will therefore not be possible to plead this excuse unless some evidence is available as to the economic benefits which would accrue if the proposal is confirmed.
The concept of proportionality requires the public authority to strike a fair balance between the interests of the individual whose rights are being impinged upon, and the interests of others or of the community in general.
The obligation to refrain from unjustified interference is not merely the negative one which the language would suggest. Article 8 also imposes a positive obligation on local authorities to act to secure enjoyment of the rights or to protect people’s enjoyment of them. In Guerra and Others v Italy, for example, the ECtHR held that a failure by the authorities to take appropriate action to reduce the risk of pollution to the applicants, who lived near a chemical factory, was a breach of article 8.
Some examples of the difference that article 8 has made in the field of health and social care
Human Rights and mental health issues:
Dignity in mixed sex wards
Bodily Cavity examination of visitors
Access of people’s children as visitors to those on acute wards
The contacting of the nearest relative, unless not reasonably practicable
The means by which an incapacitated person ever gets any of the so-called rights of challenge, if they have no-one to act for them
The right to liberty, vs the patient’s desire to consent to very stringent conditions of restriction in order to obtain discharge…
Rights regarding consent, or lack of rights to refuse consent, to medical treatment for mental health conditions…
Human rights and information sharing
This reflects the UK position on the ‘need to know’ principle in the law of confidentiality.
Interesting cases: –
Plymouth and the nearest relative – the NR was entitled to quite a lot of the relative’s file in order to perform their statutorily given functions properly
Various cases about enhanced disclosures – the public interest justifies the disclosure of soft information in most cases.
Being put on the POVA list without proper chances to make representations – affecting care workers’ rights to work in their chosen field – the RCN cases on behalf of suspended nurses.
Social Services and the aspiring social worker – Ms Maddock – even though there was no duty to share the information, and no function such as a power or discretion engaged, it was still lawful to breach the confidentiality implicit in the woman’s children’s files when she tried to become a social worker.
Parole and the ex-convict and M.A.P.P.A – we may have very different duties according to whether we are facilitating an introduction between a landlord and a person with a difficult past, as opposed to actually making the placement in the discharge of our functions of providing care to that person.
Human rights, needs and manual handling – the X and Y case from East Sussex:
The case involved two women who were looked after round the clock by their parents in adapted accommodation, together with assistance from paid carers. They were wholly dependent on lifting for all personal care tasks related to their physical and social well-being. The unresolved issue in the case related to whether the local authority concerned ought to have planned for care to involve manual lifting, or only hoisting – or – if a mixture should have been planned for, given the range of the women’s difficulties and needs, then how should the balance between the two methods have been struck?
The challenge had been commenced on the basis that East Sussex County Council had long since maintained a ‘no lifting’ policy in relation to care planning. By the time the hearing took place, however, the council had amended its policy, without admitting it had ever amounted to a blanket ban on manual lifting, and the judge was content to consider the issues on that basis. The judge did however make it clear that a lifting policy was highly unlikely to be lawful if, either on its face or in its application, it imposed a blanket ban on all manual lifting; or only allowed for manual lifting in life threatening situations or where use of a hoist was a physical impossibility.
This meant that the central issue was not the lawfulness of the policy but the reasonableness of the council’s view about how its lawful policy should actually be applied to the two service users. The judge stressed that other policies might be equally as lawful, so the council’s amended version was not to be regarded as a prescriptive model for the contents of every other authority’s policy.
The lifts which were the subject of the dispute consisted of various categories including routine, daily lifts (eg turning from prone to supine, transferring from bed to changing trolley); lifts necessitated by unexpected circumstances (eg slipping from a hoist in the bath; slipping under the water) and by external unforeseen events such as fire emergencies or power failures; and external lifts involved in recreational activities such as shopping, swimming and horse-riding.
The key principles to emerge from the decision are
- health and safety law does not require a guarantee of absolute safety of employees – the employer’s obligation is to avoid or minimise the risk to staff so far as is reasonably practicable;
- in the context of care arrangements for people with disabilities, their human right to dignity, independence and participation in the community, as protected by article 8 of the European Convention on Human Rights must be taken into account when assessing risk;
- when assessing the impact on the disabled person, the following must be considered, though none are determinative, in a user-focused way: the physical and mental characteristics of the person, the nature and degree of disability; the wishes and feelings of the person, and negative reactions to proposals. Prolonged resistance, and obvious great distress may make it impracticable to avoid manual lifting;
- a balance must be struck between the needs and rights of service users and the needs and rights of carers – the one does not take precedence over the other;
- in striking that balance matters of dignity and respect weigh heavily with people who are already shut out from so much of what makes life enjoyable and enriching for the majority of society;
- there will be situations in social care where manual lifting, even though it entails a real risk of injury to the care worker, is inherently necessary when providing an appropriate adequate care package which takes accounts of the needs and human rights of service users.
The judge expressly rejected any suggestion that those who choose to take employment in jobs that expose them to enhanced risks (eg firemen, ambulance men, nurses and others in the caring professions) were presumably content to accept those risks.
The judge went on to give further guidance on what is required from employers. Once a balance has been struck between the competing interests of carer and cared for, the employer must make appropriate assessments and take all appropriate steps to minimise the risks that exist. The assessment must be properly documented and lead to clear protocols which cover all situations, including foreseeable emergencies. There would inevitably come a point where a protocol would become too prescriptive; situations in which it must be for the carer to decide how to act must be indicated, for example, in an emergency, or if the client is evincing distress or showing prolonged signs of resistance. The judge recognised that these matters would necessarily involve questions of sensitivity and judgment on the part of the carers, but said that that, after all, was the nature of the task.
…it cannot be said that it is reasonably practicable for ESCC to avoid the need for their employees to undertake any manual handling of A and B. The duty of ESCC is, as he put it, to take appropriate steps to reduce the risk of injury to the lowest level reasonably practicable …
- The other important concept embraced in the “physical and psychological integrity” protected by article 8 is the right of the disabled to participate in the life of the community and to have what has been described (see below) as “access to essential economic and social activities and to an appropriate range of recreational and cultural activities”. This is matched by the positive obligation of the State to take appropriate measures designed to ensure to the greatest extent feasible that a disabled person is not “so circumscribed and so isolated as to be deprived of the possibility of developing his personality”. In the case of the physically handicapped, the abovementioned positive obligations require appropriate measures to be taken, to the greatest extent feasible, to ensure that they have access to essential economic and social activities and to an appropriate range of recreational and cultural activities.
The precise aim and nature of the measures undertaken may vary from place to place, and according to the priorities of facilitating access to sanitary facilities, footpaths, transport, entrances to buildings, historical sites, areas of natural beauty and areas of recreational use. In the case of the mentally handicapped, the measures would necessarily be different. This is an area in which a wide discretion must inevitably be accorded to the national authorities. Nevertheless, the crucial factor is the extent to which a particular individual is so circumscribed and so isolated as to be deprived of the possibility of developing his personality.
One must guard against jumping too readily to the conclusion that manual handling is necessarily more dignified than the use of equipment. A disabled person or invalid may prefer manual handling by a relative or friend to the use of a hoist but at the same time prefer a hoist to manual handling by a stranger or a paid carer. The independently minded but physically disabled person might prefer to hoist himself up from his bath or chair rather than to be assisted even by his devoted wife. …
Dignity in the narrow context in which it has been used during much of the argument in this case is in truth part of a much wider concept of dignity, part of a complicated equation including such elusive concepts as, for example, (feelings of) independence and access to the world and to others. Hoisting is not inherently undignified, let alone inherently inhuman or degrading…. certain forms of manual lift, for example the drag lift, may in certain circumstances be less dignified than hoisting. Hoisting can facilitate dignity, comfort, safety and independence.
- This brings out the enhanced degree of protection which may be called for when the human dignity at stake is that of someone who is, as A and B are in the present case, so disabled as to be critically dependent on the help of others for even the simplest and most basic tasks of day to day living. In order to avoid discriminating against the disabled — something prohibited by article 21(1) of the Charter — one may need to treat the disabled differently precisely because their situation is significantly different from that of the able-bodied. Moreover, the positive obligation of the State to take reasonable and appropriate measures to secure the rights of the disabled under article 8 of the Convention (and under articles 1, 3(1), 7 and 26 of the Charter) and the positive obligation of the State to secure their essential human dignity, calls for human empathy and humane concern as society, seeks to try to ameliorate and compensate for the disabilities faced by persons in A and B’s situation.
Human rights and elderly care and staying put in one place
An elderly woman was living in an ordinary care home – she needed to be hospitalised for a fall.
Her daughter was determined she should return to that particular residential care home – it had done miracles before, and everything about it was familiar.
The joint Health and Social Services continuing long term care Panel decided she could only be cared for appropriately in a nursing home, regardless of not having a community care plan actually completed!
The daughter was furious and complained – a proper care assessment was done (and it was The Best Ever – 40 pages long and every domain commented upon by the carer!!)
The Senior Manager then invited a geriatrician to opine on eligibility for FNC, and to ‘confirm the decision’ without mentioning the up-to-date CCA!!
Unsurprisingly the Panel’s decision was confirmed.
The daughter ignored this and took the woman back to the care home, arranging for nursing care to go in, at her expense.
On the judicial review, regarding the process followed:
Wandsworth lost and the judges were appalled at:-
The panel – no minutes, no reasons, no clarity of who was deciding what. And the Panel had refused the daughter the right to attend, whilst apparently being happy to have her written representations before it
The LA’s Senior Manager – she’d been advocate for the LA and decision-maker all in one and instructed the geriatrician inappropriately.
The Geriatrician – what became of the notion of a second independent expert opinion? What was there anywhere that said that his only role was to agree eligibility for FNC, rather than the appropriateness of the equivalent of nursing being delivered in some other setting?
BUT Human Rights added something to the question of the actual decision that would have to be retaken, after the case – this woman was near the end of her life, and her right to respect for her private and family life would make it harder for the new panel simply to come to the same conclusion third time around.
In addition to being in accordance with the law and necessary in a democratic society for the protection of the Appellant’s health, any interference by the State with her right to respect for her private life must be proportionate. There is no evidence, in my judgment, that Wandsworth gave any consideration to the principle of proportionality.
This is particularly marked in the meeting on 6 October. I have already set out in paragraph 52 above what can only be regarded as Linda Goldsmith’s practical, albeit emotional, expression of the Appellant’s Article 8 rights. I have recorded Mr. Kelly’s response. It is apparent to me that at no point in the meeting is there any evidence that either Mr. Kelly or any other Wandsworth decision maker had addressed their minds either to Article 8 itself or to the proportionality of Wandsworth’s response.
The proportionality of the response is, therefore, of the utmost importance. In my judgment it is not good enough for Wandsworth, after the institution of proceedings, to produce evidence that this was a factor in its mind when it made the decision (whenever that was). In my judgment, the court has to look at the decision at the time it was made and at the manner in which it was communicated to the person or persons affected by it. And in that process, I find a complete absence of any suggestion that Wandsworth had addressed the Appellant’s Article 8 rights. It is unexceptionable for Dr. Cottee to express his professional opinion, but it is for Wandsworth to conduct the overall balancing exercise, which gives weight to Dr. Cottee’s opinion in the wider context of the Appellant’s needs and rights. The point was put to Mr. Kelly point blank by Linda Goldsmith at the meeting, and his answer, in my judgment, is clear.
I would direct Wandsworth to reconsider its position with an open mind and on all the material available at the date of the fresh decision. I would expect the process of decision making to be transparent and the reasons for its decision to be clearly articulated in writing.
The merits of the decision are not a matter for this court. Given the history of this case, however, I nonetheless express the hope that what is left of the Appellant’s life can be lived out with the maximum of dignity and the minimum of psychological harm.”
Human Rights and Dignity – the McDonald case – incontinence pads for someone who’s not incontinent?
“Article 8 cannot be considered applicable each time an individual’s everyday life is disrupted, but only in exceptional cases where the State’s failure to adopt measures interferes with the individual’s right to personal development and his or her right to establish and maintain relations with other human beings and the outside world.
Regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole and to the wide margin of appreciation enjoyed by States in this respect in determining the steps to be taken to ensure compliance with the Convention.
This margin of appreciation is even wider when, as in the present case, the issues involve an assessment of the priorities in the context of the allocation of limited State resources. In view of the familiarity with the demands made on the health care system as well as with the funds available to meet those demands, the national authorities are in a better position to carry out this assessment than an international court.”
The judge concluded: “I have the greatest sympathy for the misfortunes of Ms McDonald and, I would like to believe, a real understanding for her dislike of what the Royal Borough has proposed. However, even though the Royal Borough had in my judgment failed in its duty in overlooking that at the time of its November 2008 decision Ms McDonald’s defined need was still that of assistance to access the commode at night, that error was not born of any lack of respect for her dignity, but of a concern, even if at that time wrongly executed, to perform the difficult task of balancing its desire to assist Ms McDonald with its responsibilities to all its clients within the limited resources available to it in its budget.”
Human rights impact within CHC law – keeping a person in their own home, even though there is no right to force the PCT to pay for this:
“Dr Milne also notes that Rachel had made a far greater recovery than was predicted at the time of her surgery and had continued to improve since being at home. This accords with the views of others and it is apparent that the care provided to her by her parents, in particular her mother, has resulted in a remarkable improvement in her condition. That is, as it seems to me, a very important consideration which must be given due weight in deciding on her future.
I do not regard evidence of what benefits could accrue from the expenditure of sums which could be saved in providing a less costly package for Rachel as helpful. It is obvious that Health Authorities never have enough money to provide the level of services which would be ideal, but that cannot mean that someone such as Rachel should receive care which does not properly meet her needs.
The interference with family life is obvious and so must be justified as proportionate. Cost is a factor which can properly be taken into account. But the evidence of the improvement in Rachel’s condition, the obvious quality of life within her family environment and her expressed views that she does not want to move are all important factors which suggest that to remove her from her home will require clear justification.”
The HR element regarding paying the relative as an intermediary – from the judgment in Gunter
“Broadly speaking, the trustees of an IUT who should include a representative of the defendants, would provide the necessary package of care for Rachel with funds provided by the defendants. The major benefit of such an arrangement would, it is said, be the avoidance of the profit costs otherwise payable to an independent agent such as Allied Health Care, whose profit margin is in the order of 35%.”
But the IUT/provider entity would have to be registered and some past track record would normally be needed.
The structure would have to be carefully organised so as to ensure financial accountability, and a proper co-ordination between management and staff.
The PCT would … require that they were the ultimate decision makers in relation to what has been called clinical governance.
There must be minimum standards set up and a scheme spelt out to govern the way in which the necessary care is to be provided
“Whether or not these difficulties can be overcome I do not know… but the possibility of an IUT with the substantial saving in cost which it may produce for care at Rachel’s home is one which can and should be explored.”
The Watts case – care home closures
The European Court of Human Rights declared as inadmissible the challenge of a 106 year old woman to a home closure, because Wolverhampton Council had engaged in a 12 week consultation period in which it had actively sought the views of residents, their families, carers, staff and interest groups.
The Council had indicated a willingness to take any steps within its powers to facilitate transfers for residents and to ensure that they remained with their friendship groups. For Mrs Watts this included moving her to a more expensive placement in order to allow her to remain with friends.
The Council moved Mrs Watts to a new home which was only three miles from Underhill House.
The Council took into consideration individual assessments in respect of the residents that it moved, as well as the recommendation of Mrs Watts’ own expert psychiatric witness.
The closure of Underhill House was part of a rationalisation of care for the elderly provided by the Council. Underhill House itself was a relatively old building that no longer met the requirements for a modern care home. The Court noted that with the passage of time buildings would become outmoded and/or dilapidated while the standards of care expected of care homes rose.
In such circumstances a public authority could be criticised for not closing a home and moving residents.
Human rights, sex and learning disability – the KM case
A young woman with learning disabilities but enough capacity to have sex with her long term boyfriend, albeit maybe not enough to figure out how bad he was for her, and who was therefore expected by the council not to have him to her accommodation – alleged a breach of human rights when the council refused to provide them with somewhere else safe to go to have sex. The judge said this:
“I should add that the local authority cannot in this connection seek to avoid its positive obligations by seeking to toll the bell of scarce resources.…the additional financial burden which this may impose on the local authority is comparatively modest given the overall cost of its provision for MM. And the right in play here is, to repeat, too important, too precious in human terms, to be swept aside by such purely fiscal considerations. If the local authority seeks to impose on MM a regime which in fact involves a breach of her Article 8 rights – the consequence of imposing on MM a regime which in practical terms prevents her continuing her sexual relationship with KM – then the local authority in principle has a choice. It must modify the arrangements so that there is no breach of Article 8. And in the circumstances of the present case it can do this either by abandoning its attempt to prescribe where and with whom MM lives or, if it wishes to exercise that control, by taking appropriate positive steps to enable MM to continue her sexual relationship with KM. If it seeks to do the one without shouldering the burden of doing the other, then its intervention in MM’s life is, he submits, and I agree, disproportionate. And in my judgment it involves a breach of her rights under Article 8.”
Bernard v Enfield LBC – housing and social care non-communication
Mrs B needed support at home – her housing situation meant that her wheelchair was useless at home – she had many children, and insisted that Mr B do her personal care – and the council provided no other support for them – housing failed to deal with the unsuitability of their housing – for 2 years she would be left in her own urine and faeces and was prevented from fulfilling her role as wife and mother – this was not inhuman or degrading treatment, as it was not intentional, but the failure to sort out services and housing was an indefensible lack of respect for her private and family life – and they couple were awarded £10,000 in damages although the court said that they could have gone through the Ombudsman instead.