In the last few days, CASCAIDr has been covering human rights in the context of adult social care, on social media.
Examples have touched on policies or resources difficulties which have seen carers doing the council’s job for a variety of reasons, varying from not knowing that there is no legal obligation to take on that responsibility, to feeling one has literally no choice but to do it. Liverpool v Hughes is a case where the carer, rather than the client, needed to bring the challenge. Other cases have seen disabled people left in dire and unconscionably long-lasting situations (Enfield v Bernard) and people’s relatives being upheld in their wish to participate and be involved in due process (Wandsworth v Goldsmith).
You can search for these in www.CASCAIDr’s search box – and at the end of this overview of article 8, here are three more that we predict will matter in the coming days – Elaine McDonald’s case (about the means by which needs can be met, consistent with dignity), Rachel Gunter’s case (about being cared for at home) and MM’s case (about maintaining intimate relationships chosen by people with capacity).
Article 8 is the most relevant article of the ECHR, to which we are still signed up, despite Brexit. The vast majority of the Convention has been made a directly applicable part of our own UK law through the 1998 Human Rights Act, still also in force for all purposes, which 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 lawAND is necessary in a democratic society in the interests of
- national security [no great surprise there, for anyone, we would suspect],
BUT there are further caveats to take note of, because 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 well have been written with the Coronavirus crisis and the problems it presents to our local government sector, 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’.
The reference to necessity is to a concept of proportionality – that is, 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 a saving or getting in an income is desirable – it must be more important than that.
Ironically, in this crisis, it will not be money, so much, that we predict that will be weighed in the balance: it will be the absence of staff or trained staff or trained staff with sufficient protective equipment. Even if there’s fault behind our inadequacy to deal with the problem immediately, that inadequacy is a fact that has to be factored in to the thinking about who gets what and when and why.
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. When life is at stake, that is a particularly difficult balance to strike.
Care homes and providers who are contracted to councils, are bound by human rights, because the Care Act says so.
Contractors delivering services for the NHS, for instance, all those in NHS paid for interim beds now that Continuing NHS healthcare assessment has been suspended – also owe human rights, not because of the Care Act but because they are discharging statutory obligations for the NHS directly under the NHS Act, and are thus what’s known as a hybrid public authority.
So, for all providers, there is an obligation to refrain from unjustified interference in people’s private lives and relationships – which is why blanket bans on visiting, are probably not lawful, right now.
However, it is not merely the negative one which the language would suggest. Article 8 also imposes a positive obligation on local authorities to take steps 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.
Human Rights and Dignity – the Elaine 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:
The Gunter case
“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.”
Human rights, sex and learning disability – the MM 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 might be for her, and who was therefore expected by the council not to have him to her supported living 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 [MM’s counsel] submits, and I agree, disproportionate. And in my judgement it involves a breach of her rights under Article 8.”