Embedding human rights in adult social care
By its very nature, social work 'is a human rights discipline… It’s not just an element of it – it is the core principle'. (Ruth Stark, President of the International Federation of Social Workers, 2014)
The universal protection of people’s rights is fundamental to adult social care practice. A human rights approach counters any national or global tendency towards the creation of a ‘hierarchy of humanity’ which treats some as less than human.
A widely published example is the judge’s ruling upholding the rights of Steven Neary, a young man with autism and severe learning disability, when it took over a year for Steven to be returned home after going to a respite unit for a few weeks whilst his father was unwell. The local authority did not sufficiently discuss its concerns or plans with Steven himself, who had consistently expressed a desire to go home, nor with his father. Mr Justice Peter Jackson found that their action contravened his right to liberty and right to family life under Article 5 & 8 of the European Convention on Human Rights, neither was it consistent with Deprivation of Liberty Safeguards (DoLS amendment to the Mental Capacity Act 2005). (Source: Essex Chambers, Hillingdon v Neary 2011 http://www.39essex.com/cop_cases/london-borough-of-hillingdon-v-neary-2/)
The Human Rights Act (HRA) 1998 gives all people in the UK, whether they are British citizen, visitor, or victim of trafficking into or within the UK, the rights set out in the European Convention of Human Rights (ECHR, 1951), drafted by the Council of Europe in the wake of World War Two (http://www.echr.coe.int/Documents/Convention_ENG.pdf).
The HRA is a unique domestic law in that it focuses on humanity – the protections every person has as a member of society – as opposed to focusing on people’s identity, needs or behaviour. In this way it promotes the rights of discriminated against groups identified in the Equality Act 2010, yet it avoids ‘othering’ people (Harrison and Melville, 2010) critiqued by intersectionality theorists for reducing identity to a single dimension (Crenshaw, 2012) or ‘protected characteristic’. People’s lives are more complex and require specific strategies to be in place, for example to support older LGB&T people living with dementia.
Under the HRA people with care and support needs have the same entitlements as everyone else – human rights are ‘universal, inherent and inalienable’ (cannot be forfeited). However, it is worth noting that Lynne Healy, in an analysis of the history of social work as a human rights profession, suggests ‘it is fair to conclude that social workers have usually paid more attention to human needs rather than to human rights’ (Healy, 2008:745).
Upholding human rights is central when a person’s liberty may be restricted due to their care and support needs. A human rights approach works to people’s strengths and counters professional decision-making based on aversion to risk (Faulkner, 2012). It supports rights maximisation in the promotion of wellbeing, in accordance with the Care Act 2014.
When people are dependent on care providers for daily support to meet their health and care needs, upholding the absolute right to freedom from torture and inhumane or degrading treatment under Article 3 of the HRA is critical. In the wake of failures of care services such as the Mid-Staffordshire scandal and Winterbourne View, Stephen Bowen emphasised how the ‘challenge now is to eliminate poor practice and ensure healthcare services are designed and delivered with the person and their rights at the core’ (BIHR, 2013:10).
Section 6 of the HRA places a duty on all public authorities and private bodies carrying out public functions to act in a way which is compatible with Convention rights. However, the Equality and Human Rights Commission’s review of how well public authorities protect human rights concluded that:
'Health and social care commissioners and service providers do not always understand their human rights obligations, and the regulator’s approach is not always effective in identifying and preventing human rights abuses.’ (EHRC, 2012:438)
The Care Quality Commission subsequently introduced a human rights approach to the regulation of health and social care services which can provide strategic leaders with a helpful model for further embedding human rights in the planning and delivery of social care services (CQC, 2014). Their infographic is available here: http://www.cqc.org.uk/sites/default/files/20161128_human-rights-approach-regulation_infographic2016.pdf.
The CQC stresses the importance of providing professional leadership and commitment to social justice by protecting the human rights of both staff and service users, and that strategic leaders need to be proactive in relation to the HRA. Currently any person who believes his or her rights have been violated by a member state can take a case to the European Court of Human Rights in Strasbourg. This is different to the European Court of Justice in Luxembourg (Kendall, 2015) and is not to be confused with the European Union. It is also important to be aware that leaving the EU in 2019 does not automatically affect the UK’s status as a signatory to the European Convention on Human Rights.
The new RiPfA Leader’s Briefing on human rights draws on key learning from rights violations in the context of adult social care. It offers a series of examples of good practice in promoting the rights of people with care and support needs, along with questions to help service leaders to embed human rights frameworks when leading social care systems. It also flags the need for specific training in relation to coercive control and modern slavery, which are explicitly referred to in Care Act 2014 guidance (Department of Health, 2016: s.14.7) in line with two new pieces of legislation: the Serious Crime Act 2015, s76 and the Modern Slavery Act 2015 respectively. Absolute rights under Articles 3 and 4 of the HRA underpin safeguarding interventions in these situations.
There is still much work to be done to protect the rights of all people and respond effectively when fundamental human rights are undermined. Social work leaders have a key part to play in embedding human rights approaches and supporting social workers and the wider social care workforce in their core mission of protecting human rights.
About the author
Tish Elliott is a registered social worker currently employed by Plymouth University as a Practice Educator/Lecturer in Social Work. She is an active member of the Forum for Race Equality and Diversity Awareness (FREDA) – a network of practitioners, students, service users, carers and academics across the South West working in partnership with Plymouth University to promote human rights and social justice. Tish is an Associate of Research in Practice for Adults. Email: firstname.lastname@example.org.
British Institute of Human Rights (2013) The Difference It Makes: Putting Human Rights at the Heart of Health and Social Care. London: BIHR.
Care Quality Commission (2014) Human rights approach for our regulation of health and social care services Newcastle upon Tyne: CQC. Available online: https://www.cqc.org.uk/sites/default/files/20150416_our_human_rights_approach.pdf
Crenshaw K (2012) On Intersectionality: The Essential Writings of Kimberlé Crenshaw. Perseus.
Department of Health (2016) Statutory guidance to support local authorities implement the Care Act 2014. Available online: www.gov.uk/guidance/care-and-support-statutory-guidance
Equality and Human Rights Commission (2012) Human Rights Review 2012: How fair is Britain? An assessment of how well public authorities protect human rights. London: EHRC.
Faulkner A (2012) The Right to Take Risks: Service users’ views of risk in adult social care. York: Joseph Rowntree Foundation. Available online: https://www.jrf.org.uk/sites/default/files/jrf/migrated/files/right-to-take-risks-faulkner.pdf
Harrison G and Melville R (2010) Rethinking social work in a global world. New York: Palgrave Macmillan.
Healy L (2008) International Social Work: Professional Action in an Interdependent World. Oxford University Press.
Kendall F (2015) The European Court of Justice and the European Court of Human Rights. Clarion website, blog article. Available online: http://www.clarionsolicitors.com/blog/the-european-court-of-justice-and-the
Stark R (2014) ‘Social work is a human rights discipline’ President of International Federation of Social Workers and former head of the Scottish Association of Social Workers. Community Care 23 July 2014.