Human rights principles accord with an admittedly old-fashioned public sector ethic about ‘making a difference’ to the area in which the authority has been elected to govern (Local Government), or required to administer on behalf of central government (Health bodies). This is because the Human Rights tradition aims to balance the rights of individuals, with the rights of others.
The UK’s Human Rights Act 1998 has the potential for enforcing a radical culture change, in terms of both the number of claims made to local authorities, and also the level of accountability of Members and officers. The driving force behind this change is the introduction of cash sums for unjustified interferences with people’s human rights, and the potential for convenient local adjudication of claims about human rights, in any type of court or tribunal.
Organisations in the public sector with sensitive, significant and interventionist functions are finding already that it is very easy to be accused of a human rights breach by contractors, partners and clients alike. There are rational and commercial reasons for solicitors, businesses and members of the public to make such accusations.
For health bodies and local authorities, it is inevitable that as the act beds down, the numbers of complaints received will increase, and there may be a change in the source of those complaints towards lawyers and individuals, rather than lobbying organisations.
By way of introduction it is important to grasp that human rights law is not new in this country because the UK has been a signatory to the European Convention for decades, and has allowed individuals to bring human rights claims against the UK in the Strasbourg courts. Also, the judges have long been willing to consider European and for that matter international human rights law when they have been faced with ambiguous UK statutes which could mean one of two or more things – they do this because of the legal presumption that the government would not inadvertently pass legislation which would put us in breach of our international obligations, so in cases of doubt, they are more likely to construe vague bits of legislation consistently, rather than inconsistently with human rights law.
It is also worth noting that human rights law has already found a way of seeping into our system through the side door of European Community law – the court in Luxembourg has often emphasised that European human rights principles are implicitly at the heart of European Union legislation. Since EU law is binding on this country under the European Communities Act, any case in which EU remit overlaps with both human rights and UK law, will have be decided in accordance with human rights principles.
In 1998 the Human Rights Act was made into UK law but not brought into force until October 2, 2000. Its aim was to ‘bring rights home’ by ‘incorporating’ the ECHR into domestic law, so that people here could see human rights embedded into the very fabric of UK society, and as binding not just upon the State, but on every public authority as defined in the Act.
It should be noted however that the Act stopped a long way short of incorporation. It made ECtHR principles nearly all-pervasive, but allowed for the unambiguous intention of Parliament (in the form of clear statutory words) to override human rights in the name of “sovereignty” (an important constitutional concept, beloved of politicians, meaning that Parliament and statutes are at the top of the hierarchy of power and law-making in the UK). This means that public authorities are sometimes (although rarely) obliged or permitted to act in breach of human rights, yet will not be liable in damages.
The Act brought in two new innovations which will inevitably fuel the trend towards litigation:
Cash sums by way of compensation through the courts, for breaches of human rights
Convenient local adjudication to resolve such issues, rather than use of the European Court in Strasbourg
These factors mean that rational and well-informed solicitors will have a new incentive to offer health and social care law as an area of expertise, offering “no win, no fee” deals to a new client market and increasing the pressure for compromises and pay-outs short of the court door. It is not ‘prudent risk management’ to let it be thought that an authority will usually prefer to settle a claim rather than risk being sued. Small to medium pay-outs are likely to be made out of the departmental budget, not the authority’s insurance cover, because of the insurance excesses which will have been agreed.
Uninformed fearfulness and doubts about the implications of the act for practice are a serious managerial problem because:
Everything done by a public authority is (THEORETICALLY) challengeable if it conflicts with one of the Convention rights listed in the legislation – health and social services functions will regularly engage articles 2, 3, 5, possibly 6, 8, 9, 10, and 14, and article 1 of the First Protocol.
There is very little UK case law clarifying the benchmark which will be applied by the courts
All (local) authorities must by statute have a Monitoring Officer whose statutory duties to report on potential breaches of the law or maladministration to members. This duty will be triggered by coherent allegations of a breach of human rights
Members’ and Boards’ political concerns virtually invite exploitation of a collective ‘guilty’ conscience and increase the pressure for compromise, rather than clarification through the courts
Front-line staff’s professional ethics may be based on a higher standard of conduct than the law in fact requires, so staff will naturally be nervous about the effect on patients and clients of the authority’s inevitable constraints. Defensive practice can do more harm than good.
One approach to these factors is to remember that it is remarkably HARD in real life to act incompatibly with the Human Rights which have been acknowledged in the Act. There are at least 4 facts which make this seemingly outrageous statement easier to accept:
- There is only a short finite list of ‘rights’ actually listed in the Act.The rights whichare included are traditional, libertarian, ‘classic’ human rights, not ‘trendy’ socio-economic ones – for example, in the Act, there is :
No right to work
No automatic right to free legal advice
No absolute ban on discrimination
No absolute right against self-incrimination
No human right to freedom of information
No absolute right to health care or social services, not even based on a diagnosis of need
- Crystal clear UK statutory language whichisincompatible with Convention Rights, in effect, ‘trumps’ Human Rights – public authorities have a defence to a claim for damages if the wording of a statute or regulations compels their actions or decisions. This may be relevant to things done under the social care Charging Framework for instance, or the Mental Health legislation.
- Next, the real value of the rights whichareincluded is very hard to pin down, given the ambiguity of their wording – for example:
The art 3 right not to be subjected to inhuman or degrading treatment all depends on what those words mean, (it is a judge who will decide) and that may well depend on the context or situation in which the complaint has arisen, and opinion as to therapeutic necessity may justify quite surprising levels of intervention;
Even the art 6 right to a fair hearing depends on what is regarded as ‘fair’, in context – so for example, the pressure to self-incriminate, when one gets a speed camera notice from the police, asking whether one was the driver on the day, on pain of prosecution for failure to co-operate if one does not reply, is not, in the context of the importance of road traffic regulation – considered by the courts to be unfair;
Further, the right to life (art 2) was not breached when the Siamese twins were separated, even though it was absolutely certain it would kill the weaker of the two.
The right to change one’s religion, and manifest one’s belief (art 9) was not breached when a man was refused time off by his employer to pray….his ultimate human right, having signed up for the 9am-5pm job, according to the Court, was to resign…
- Lastly, even the human rights whichhavebeen included in the list, tend to have further express exceptions or restrictions built into them, and some have public interest exceptions which are very broad indeed – for example:
The economic well-being of the country (and some even say of the area)
The rights and freedoms of other people
The prevention of crime and disorder
The protection of public order, health or even ‘morals’
This is why article 8, the right to respect for private and family life, which will most often be the one in play in health and social care contexts, will be very hard to breach. For example, it is not inconceivable that individual ‘rationing’ decisions, which lead to the denial of potentially life-saving treatment on the grounds that the chances of success are not thought to be very high, could be found to be justified and proportionate. Although the decision could be said to lack ‘respect for private life’ and even ‘the right to life’, it would have been taken on the basis of a proper clinical decision (hopefully, and not just a blanket policy such as ‘no transplants for the over 75s’) and would have taken into account the economic well-being of the country, and the rights of other people.
It is not exaggerating, we think, to say that the restrictions to the Convention rights could well have been written specifically to address the very conflicts between the individual and the broader community, which regularly face local government (and the NHS when trying to meet everybody’s needs).
What are the main differences it will bring about to the culture of health and social care provision?
Discretionary decisions, including omissions to act, (ie all policy making, practices, procedures, actions, individual decisions) will become potentially challengeable for a breach of human rights.
Secondly, a new test for judicial scrutiny has been introduced, called ‘proportionality’, for the determination of human rights issues. This test is formless enough to enable the judges, if they should want to, to impose higher standards of reasoning and balance on administrators than is presently the tradition in the field of judicial review.
Whereas the old test of “unreasonableness” required judges to hold off, unless a public body has done something outrageous (or otherwise unlawful or unfair), the new test at the very least requires public officials to go further in establishing that they had good reasons for their decisions and that they took human rights into consideration at the time.
This new test is bound to give judges a taste for closer supervision of administrators in all but the most sensitive, specialist fields of decision-making, and means that record keeping and documentation of factors considered by Members and Managers must be improved.
It is not inconceivable that the new test might lead a judge to scrutinise the accounting records of an authority to see if it really is necessary in a democratic society, for the economic well being of the country, to close particular facilities where residents had been led to understand they could live for their whole lifetimes….
Thirdly, the European analysis of some of the Convention rights has long been that acting compatibly does not merely mean refraining from unnecessary interference in people’s lives – some of the rights and freedoms necessarily require positive action on the part of the State to further or to protect people’s enjoyment of those rights. This will mean that authorities will be open to claims for deciding not to do something (eg for reasons exclusively related to budget management) when that leaves someone disproportionately unsupported or unprotected. The annual budget settlement between departments will not be able to be regarded any longer as determinative of an authority’s lawful discharge of its functions.
What are the areas of likely impact of the Human Rights Act for health and social care agencies and the services they provide?
We expect article 3 (inhuman treatment) and article 8 (respect for home, privacy and family life) claims to be aimed at standards, regimes and conditions in hospitals, homes and packages of services, on the basis that tagging, shared rooms, mixed wards, consultants’ rounds, routine use of restraints such as bed-guards, use of complicated locks etc., could arguably amount to a breach of the right to respect for personal autonomy, or amount to inhuman or degrading treatment.
On the other hand, we recognise that the European Court has allowed a surprisingly generous margin of appreciation to psychiatric professionals to conduct so-called ‘therapeutic’ regimes, and clinicians have also long had the respect of the courts in the UK as well.
Joining these claims up with article 14 (discrimination) may lead to litigation about policy differences on the basis of age – many authorities treat the over 65s as for some reason entitled to a lower quality of life, through tighter criteria or lower cost ceilings for domiciliary packages. This is unlikely to be an attractive justification for differential treatment when put before a 66 year old judge! The NSF for Older People also clearly outlaws age-based cut-offs for services or different treatment.
Home closures and externalisation of services are bound to raise article 8 claims, in the light of the Coughlan and Perry cases, perhaps increasing the meaningfulness of the content of the consultation duty and focusing everyone’s minds on risk assessment regarding a move.
The issue of whether the commercial dealings by a local authority with a provider of residential care were “private” in nature under the HRA 1998 was discussed in Heather v Leonard Cheshire Foundation Here the Court of Appeal upheld the High Court’s decision that Leonard Cheshire was not a public authority and was not exercising functions of a public nature within the meaning of s6 HRA merely by virtue of its contractual arrangements with the local authority through which the local authority discharged its duties under s21 NAA. Whilst the degree of public funding to the activities of an otherwise private body was relevant to the nature of the functions performed, it was not by itself determinative of whether functions were public or private. A similar issue was re-visited in Haggerty v St Helens Council which considered whether the decisions taken by a private contractor providing services to a local authority were amenable to judicial review and what were the extent of a local authority’s obligations under Article 8 ECHR. The local authority had refused to enter a more costly and onerous contract with a provider of residential accommodation. The provider decided to close down its home and its residents applied for judicial review of this decision. Had the judge not been bound by the Court of Appeal decision in Leonard Cheshire, which ruled out any possibility of the private provider being characterised as a public authority under s6(3) of the HRA 1998 so as to be liable under s6(1) of the HRA, there would have been no break in the chain of causation and the failure of the provider to consider the human rights consequences for the residents would have made it liable. On the Article 8 issue the claimants might have thought they had a strong argument that the right to a home also applied to living quarters in a residential home (see the Coughlan case). In Coughlan, the defendant Health Authority had promised the claimant that she would have a home for life and then, in breach of this undertaking, it voted to close down the home. In Haggerty however, the court held that a public authority had a margin of discretion to make decisions based on the scarcity of its resources and was not in breach of its Article 8 obligations by deciding not to renew its contract with the provider. This perhaps shows how the courts have adopted a more pragmatic approach to the interpretation of the human rights legislation since its inception.
In Johnson & Others v Havering LBC the claimants, in trying to prevent the transfer of local authority care homes to the independent sector, attempted to show that Leonard Cheshire was no longer good law. Residents of the home argued that Havering was prevented from transferring because that would entail a loss of their rights under the HRA 1998. The government, as intervener, argued that changes in regulations meant that independent care sector homes should be viewed as public authorities due to the degree of state control over their activities. The court rejected this argument and held that Leonard Cheshire remained good law and it was bound to follow the decision. It remains the case that an independent care home provider that accommodates vulnerable individuals under arrangements made with local authorities is not bound by the HRA 1998. The government has recently published guidance to public authority contractors to cover the protection of human rights for service users. It is available at www.dh.gov.uk/assetRoot/04/12/38/46/04123846.pdf
However, there has been an interesting restriction placed recently by the High Court on the use of Article 8 in the transfer of day care services. The decision by a local authority to close a day care service for financial reasons and transfer its users to another day care service nearby, did not contain a sufficient element of particular home life to engage Article 8. Even if Article 8 had been engaged in such a transfer, interference could have been be justified as required for the economic well-being of the local authority and those in need of services. See Bishop v Bromley In J & Others v Southend Borough Council, a challenge by service users to close a day centre for adults with learning disabilities, the court held that although the users’ Article 8 rights were engaged, there would be limited interference of them where reasonable steps were taken to minimise the impact, such as maintaining personal and social links. The decision echoed the traditional reluctance of the courts to interfere with the decisions of public authorities about how they choose to apportion their limited resources. Provided an authority has recognised the need to take reasonable steps, in the light of limited resources, to minimise the impact of a reconfiguration, the courts will be slow to interfere on human rights grounds.
The ‘best interests’ power established in Marston in 1997 in relation to people placed under guardianship under the Mental Health Act, may have to be limited to those areas in which it is established that those persons lack mental capacity – otherwise it will be necessary to argue that there is justification for interfering with someone’s personal autonomy able to be found in one of the qualifications to the right which are listed in article 8.
Article 5 (liberty) has already been significant in the mental health field, with regard to the Nearest Relative’s role and rights to information, and delay and the reverse burden of proof in Tribunal hearings. But it has not managed to bring about change with regard to delay in the provision of aftercare, because the consultants nationwide who might take on the aftercare role cannot be forced to undertake responsibility for someone they think should not be out in the community.
The shutting up of someone’s home and their subsequent detention on public health risk grounds, under s47 National Assistance Act 1948, will also raise issues, not so much as to the legitimacy of the removal, but to the proportionality of the detention, and the unjustified 6 week period which must elapse before a legal challenge is permitted. 6 weeks is sometimes enough to kill such persons, given their mental state when removed from familiar, albeit insanitary surroundings.
Article 6 (fairness in decision-making) will be of central significance if the decision as to whether a client needs a health or social care service amounts to ‘a determination of a civil right’. Whilst this seems unlikely at first, a look at the European jurisprudence shows that social security benefits, triggered by an assessment against statutory criteria, can amount to civil rights (eg. Salesi, 1993). It seems to us that one of the implications of centralised imposition of a standard approach to eligibility criteria, (such as Fair Access to Care Services), and professional assessment scales (for eg. registered nurse nursing, or dependency etc.), via central government guidance which is required to be followed under statute, comes very close to making the criteria into a statutory concept. Whether or not this makes the ‘first time’ determination of a “need” for a service into a civil right, it needs to be borne in mind that the courts have held that there is a duty regardless of available resources, to maintain an existing care plan, pending lawful reassessment. If this makes the re-assessment process into a civil right, overhauling procedures so as to increase the procedural fairness inherent in the single assessment process will be the best plan for minimising article 6 challenges.
Finally the Z v UK child protection case has already shown that whilst the current UK immunity from legal actions in negligence for the poor performance of statutory duties may not be a breach of article 6, very poor discharge of protection functions can amount to breach of the positive duty inherent in article 3 – to protect people from inhuman or degrading treatment.
The damages in that case alone were on average 3 times as much as the government submitted needed to be paid to reflect the harm suffered.
What is the likely impact of the Act in the short term future?
We have already seen the government’s concern at rooting out ageism in the NHS and social care, via the edict in the NHSF for older people against age related policies. In practice, this means that cost-capping for the over 65s, by reference to the equivalent cost of residential care, would be likely to be unlawful, as a breach of article 8: respect for home and private and family life – and also in UK law, because the policy rests upon blanket assumptions as to the appropriateness for an incredibly large section of the public of residential care. We think that such an assumption can’t possibly be justified as ‘necessary’ in a democratic society!
We anticipate that it may soon be declared incompatible with article 6 that a local authority can decide in-house, subject only to judicial review, which would never want to look at the facts in any detail, that someone has deliberately deprived themselves of assets to avoid paying for care. We think this is incompatible because of a lack of access to an independent tribunal for the determination of a civil obligation (to pay), and the dual role of the local authority as judge and prosecutor, not to mention the extra financial interest it has in the outcome!
We anticipate that even without formal adult protection powers in statute, the duties under articles 3 and 8 to take positive steps to protect or further human rights will lead to a recognition of a duty (not merely a power) for public authorities to use the courts to resolve adult protection impasses with relatives/carers – based on the judge declaring the ‘bests interests’ of the client in the Family Division in declaratory relief proceedings.
We foresee an improving of standards and sensitivity to individual differences amongst providers because of concern that providers might be sued for breaches of human rights, as hybrid public authorities (although the database explains why this is more of a fear than a realistic risk)
We think that the age old question of delay in assessment and service provision will be taken to court, now that the test is no longer ‘is it unreasonable?’ but whether it is:
- a)legalin UK law at all
- b) proportionate, given the right torespectfor private life?
Private care homes and the Human Rights Act
The question of whether private care homes can be sued under the Human Rights Act is one that has been the subject of some debate. The House of Lords addressed the question in April 2007 in the case of YL v Birmingham City Council and others  UKHL 27. The majority decision is authority for the conclusion, where the home simply provides care and accommodation, without the presence of statutory powers or duties, that the answer is “no”. The starting points of the issue that the House of Lords was faced with are the Human Rights Act 1998 and the National Assistance Act 1948.
The Human Rights Act’s application
Section 6 of the Human Rights Act 1998 places obligations upon ‘public authorities’. There is no exhaustive definition of ‘public authorities’, but Section 6(3) of the Human Rights Act provides that public authorities include courts, certain tribunals and “any person certain of whose functions are of a public nature”.
Effectively, apart from courts and tribunals, there are two types of public authority for the purposes of the Human Rights Act:
1) Standard public authorities: public bodies which are ‘obviously’ public authorities (central and local government and the police);
2) ‘Functional’ public authorities: public bodies who are public authorities for the purposes of the Human Rights Act by virtue of some of their activities being public functions.
Private bodies can be subject to the Human Rights Act, if some of their activities are public in nature. Unlike standard public authorities, which are obliged to act in line with European Convention rights in all their activities, the obligations of functional public authorities under the Human Rights Act do not extend to private acts (Section 6(5)). Therefore, it needs to be established that a private body has public functions and that the act or decision complained of is not of a private nature, before the Human Rights Act is engaged.
The National Assistance Act 1948
Section 21 of the National Assistance Act 1948 places a duty on local authorities to make arrangements for those in need of care and accommodation who are unable to make such arrangements themselves. Where a local authority provides care and accommodation to a person to whom they have a duty under section 21, then any decision or act done in relation to the provision of the care and accommodation is subject to the Human Rights Act: the local authority is a standard authority.
However, section 26 of the National Assistance Act provides that arrangements under section 21 may be made with a voluntary organisation or any other person who is not a local authority. The subject of a long running debate and the question for the House of Lords was this: when a local authority owes a duty to a person under section 21, and contractual arrangements are made with a private care home, does the Human Rights Act apply to the private care home’s provision of care and accommodation to that person? For this to be the case, the private care home must be a functional public authority for the purposes of the Human Rights Act. So, are any of its functions in that context, to be seen as ‘public’?
YL v Birmingham City Council
The facts of the case were these. Birmingham City Council owed a duty to meet the needs of YL, an 83 year old woman suffering from Alzheimer’s disease, under section 21 of the National Assistance Act. Birmingham contracted with Southern Cross Healthcare to provide accommodation to YL. When Southern Cross attempted to evict YL on the grounds of the anti-social behaviour of her visiting family, YL claimed a defence under Article 8. The first judge to hear the issue decided that Southern Cross was not subject to the Human Rights Act. The Court of Appeal agreed. The case went to the House of Lords and the majority dismissed YL’s appeal, holding that Southern Cross was not exercising a public function for the purposes of the Human Rights Act. Two of the five Law Lords dissented.
Central to Lord Mance’s reasoning behind finding that Southern Cross was not exercising a public function was the distinction in the modern legislation between a local authority with a statutory duty to arrange care and accommodation and a private company providing services with which the local authority contracts on a commercial basis in order to fulfil the local authority’s duty to arrange such services.
Lord Neuberger’s judgment also focused on this distinction, explaining that, while the statutory involvement of Birmingham can fairly be said to give the function performed by Southern Cross a public connection, he did not consider that it could, on its own, convert that function into one of a public nature.
There were a number of additional factors cited by Lord Scott and re-iterated by Lord Mance and Lord Neuberger in support of the finding that Southern Cross was not exercising a public function:
- Southern Cross is a company carrying on a socially useful business for profit. It enters into private law contracts with residents of its care homes and with the local authority with which it also does business.
- Southern Cross receives no public funding or subsidy, enjoys no special statutory powers and is at liberty to accept or reject residents as it chooses.
- It operates in a commercial market with commercial competitors.
- Unlike a local authority, Southern Cross is carrying out its activities pursuant to private law obligations.
Lord Neuberger considered the argument that a local authority should not be able to contract out of its obligations under the Human Rights Act. Whilst he saw the force in the point that a person who would have Convention rights if a service were provided directly by the local authority should not lose them merely because that service is contracted out, he found the opposing arguments more compelling:
1) the duty of a local authority under section 21 of the National Assistance Act is to arrange and pay for care and accommodation, not necessarily to provide it; as such the duty has not been contracted out;
2) section 6(3) of the Human Rights Act is concerned with functions or services, not with the identity of the person who is paying for those services or the reason for that payment;
3) YL still enjoys Convention rights as against Birmingham City Council and a local authority is often able to impose on the proprietor of a care home with whom it makes arrangements under the National Assistance Act corresponding or equivalent rights, as against the care home, as the person would have against the local authority;
4) There are policy arguments in favour of local authorities contracting out services.
Lord Bingham did not agree with the distinction between arrangement of accommodation and care under section 21 and provision of that care. He and Baroness Hale thought it important that those who qualify for residential care under sections 21 and 26 of the National Assistance Act are a vulnerable section of the community. Baroness Hale raised the risks posed to vulnerable residents of care homes, those that might amount to inhumane treatment and deprive them of their liberty, personal autonomy and interference with family relationships. She felt that Parliament must have known of those risks and could not have intended to leave those placed in private care homes, pursuant to sections 21 and 26 of the National Assistance Act, unprotected.
The presence of statutory powers/duties
So whilst the majority finding was a narrow one, it is now settled law that private care homes are not exercising a public function in providing care and accommodation, regardless of whether the person in question was placed there by a local authority.
The decision does not mean that private care homes will never be functional public authorities for the purposes of the Human Rights Act. Lord Scott stated that the position might be different if “the managers of privately owned care homes enjoyed special statutory powers over residents entitling them to restrain them or to discipline them or confine them to their rooms or to the care home premises”. For instance, once the Deprivation of Liberty safeguards come in in 2009, anyone deprived of their liberty by a care home, will have had that situation scrutinized under the safeguards, and a certificate of necessity will have been granted. That may mean that the care home is acting as the delegate of the court in this regard, and acting as a public authority, in that role. Lord Mance distinguished the case in YL v Birmingham City Council from that where admission is by compulsion under the Mental Health Act 1983 and the person is cared for in a private care home registered for the reception of s3 detainees. In that situation there is a specific statutory power afforded to the home in question. As such it is likely that if a care home has the power to detain under the Mental Health Act then they will be seen as exercising some public functions. The Human Rights Act will, however, only be engaged if the act or decision complained of relates to compulsory detention, rather than the general provision of care and accommodation. Such a case has not yet come before the courts.
Other legal obligations on Care Homes
Lord Mance made clear in his judgment that YL benefited from other legal protections than the Convention. It should be remembered that statutory regulation of care homes under the Care Standards Act 2000 and the Care Homes Regulations 2001 provide for complaints to the Commission for Social Care Inspection and in many cases criminal sanctions for poor or bad treatment. Residents, placed in a privately run care home, whether by the local authority or not, will also have contractual rights pursuant to their private law contract with the care home. Whilst the decision in YL v Birmingham City Council means that the Human Rights Act will not generally apply to private care homes, obligations under civil and criminal law certainly do.
Who is a functional public authority?
Functional public authorities for the purposes of the Human Rights Act in the field of Health and Social Care include:
- health service bodies such as NHS authorities
- the Code of Practice Committee of the British Pharmaceutical Industry
- the Human Fertilisation and Embryo Authority
- a hospital’s Infertility Services Ethical Committee
- the General Medical Council
- doctors in general practice
It is crucial, however, to remember that the above will be open to challenge under the Human Rights Act only in relation to its acts that are of a public nature. A doctor in general practice, for instance will be a functional public authority in relation to their National Health Service functions but not in relation to their private patients.
A private psychiatric hospital may be a functional public authority where a statutory duty is cast directly on the hospital, such as in the case of R (A and others) v Partnerships in Care Ltd  EWCA 529 (Admin). In that case, the hospital had some public functions: regulation 12(1) of the Nursing Homes and Mental Nursing Homes Regulations 1984 cast a direct statutory duty on the hospital, as the registered person under the Registered Homes Act 1984, to provide adequate professional staff and adequate treatment facilities; there was a public interest in the hospital’s patients receiving care and treatment which might result in their living in the community again; and patients admitted to the hospital under section 3 of the Mental Health Act 1983 were detained compulsorily. In that case the decision was one of a public nature and therefore both limbs of the test under section 6(3) for functional public authorities were satisfied.
Whether Parliament will ever do anything about the apparent anomaly, remains to be seen. Andrew Dismore’s Private Members’ Bill (Human Rights Act 1998 (Meaning of Public Authority) Bill ) to reverse the legal position described above, specifically for care homes, got as far as a Second Reading before the Parliamentary Session ended and it fell by the wayside. During the debate in June 2007 on that Bill, the Government spokesperson said that the government was “committed to taking action” that year. That did not happen, but it is now proposed to bring forward a consultation on the issue as part of the Green Paper on a possible British Bill of Rights and responsibilities, due out in 2008.
Emma Price, Barrister.
The European Court of Human Rights Chamber has handed down its decision in Elaine McDonald’s challenge to the finding, by the English Supreme Court, that RBKC’s provision of incontinence pads to her, after withdrawing the money that had been temporarily offered for night time care, pending an ILF application that did not ultimately go through, was not a breach of her article 8 human rights to respect.
The Chamber judgment said that from the date when a proper re-assessment of her needs was completed, and the reviewed service response corresponded with that reformulation of her eligible needs, (although her needs had not physically changed) – and the decision was therefore in accordance with what was required by national social care law in England – the local authority’s interference with her article 8 rights had pursued a legitimate aim, namely the economic well-being of the State and the interests of other care-users.
In considering whether the interference was, in addition, “necessary in a democratic society”, especially when weighed against the economic well-being of the State, the Court bore in mind that signatory States had considerable discretion in issues involving social, economic and health-care policy, especially when deciding how to allocate scarce resources. It was therefore not for the Court to substitute its own assessment of the merits of the contested measure for that of the competent national authorities.
So, despite the very distressing situation Ms McDonald was facing, the Court held that from 4 November 2009 onwards the interference with her right to respect for private life had been both proportionate and justified as “necessary in a democratic society” and rejected this part of her complaint as inadmissible. Prior to that date it had constituted a breach of human rights (because the service response was altered, without any new description of her needs).
The Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final
judgment. If the referral request is refused, the Chamber judgment will become final on that day.