Creating a fairer Britain
Title of guidance:
Year published: 2011
Length: 3 related documents: Overview guidance (44 pages); Equality and human rights in outcomes (41 pages); Top 10 things you need to know (4 pages)
Other formats: Contact the EHRC Helpline for alternative formats: www.equalityhumanrights.com/about-us/advice-from-our-helpline/
Producer/ Publisher: Equality and Human Rights Commission and Care Quality Commission
Type or organisation: Inspectorate, regulating or monitoring body
Adult Social Care | Health | Inspection and regulation | In-house service guidance | External service guidance | Human Rights Act | European Convention on Human Rights | UN Convention on the Rights of the Child | Convention on the Rights of Persons with Disabilities | UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment | England only | Case studies
Audience: Inspection and regulation
Topics: Human rights | equality | proportionality | balancing competing rights | home care | inspection standards
This guidance from the Equality and Human Rights Commission and the Care Quality Commission (CQC) is for inspectors seeking clarification of equality and human rights issues when monitoring compliance of health and adult social care services under the Health and Social Care Act 2008. It is also useful for other CQC staff carrying out the regulation of health and social care providers, for example in registration and enforcement. There are two detailed documents. The ‘overview’ guidance will help inspectors understand (i) equality and human rights law and how it applies both to providers and the CQC, and (ii) what to do if they think a provider may be in breach of equality or human rights law. The guidance on ‘equality and human rights in outcomes’ will enable inspectors to check how best to include the quality and human rights aspects of the CQC’s essential standards when monitoring compliance. A third document summarises the ‘top 10 things you need to know’ about how to use the detailed guidance.
This package of guidance explains how equality and human rights are intrinsic to the quality and safety of health and adult social care services.
It is aimed at all inspectors and assessors of health and adult social care: it does not assume any level of knowledge but can be used flexibly for reference. The guidance is not enforceable in law by CQC under the Health and Social Care Act 2008 or by the EHRC under equality or human rights law, although it does state that where equality and human rights are neglected ‘there may be real questions as to whether the overall standards are those that CQC would wish to endorse’.
The overview guidance establishes that a ‘human rights approach’:
The overview guidance explains that the Human Rights Act (HRA) 1998 gives effect in domestic law to the rights and freedoms in the European Convention on Human Rights (ECHR). It makes available in UK courts a remedy for the breach of a Convention right, without the need to go to the European Court of Human Rights in Strasbourg.
The HRA requires all public authorities to act compatibly with the ECHR unless primary legislation requires them to act otherwise. Individuals who consider that a public authority has infringed their Convention rights can take legal action in the domestic courts against that authority.
The HRA does not define the term ‘public authority’. In 2008, following a series of court decisions which highlighted the lack of clarity in this area, Parliament legislated to confirm that independent care homes providing residential care to individuals are performing a ‘public function’ if such care has been arranged by a local authority.
However, the overview guidance explains that the essential standards of quality and safety apply to all health and social care providers if they are carrying out regulated activities – regardless of their ownership or funding.
For example, if a private care home with no publicly-funded placements is non-compliant with an essential standard that has a human rights implication, then the CQC can take action under the Health and Social Care Act 2008 just as it can for other care homes. The guidance states that inspectors and assessors should look through the ‘lens’ of whether people are having their basic human rights protected, even if the mechanism for achieving this is the Health and Social Care Act rather than the HRA.
The overview guidance explains that human rights are classified according to whether they can be restricted under certain circumstances:
The overview guidance explains that proportionality is a fundamental principle of the ECHR. It is particularly important when considering whether an interference with a qualified right is justified. It requires that any interference with a Convention right must be no more than is necessary to achieve its objective and must not be arbitrary or unfair.
For example, if there is a choice between the courses of action that could be taken to meet an identified objective, the option that is likely to be the least intrusive for the individual concerned should be taken.
Public authorities must not only avoid breaching individuals’ rights; there are times when they must also take concrete action to promote and protect human rights. Such duties to take action are often referred to as ‘positive obligations’.
For example, a positive obligation will arise under the right to life where a public authority is made aware that there is a real or imminent danger to a person’s life – in such cases, the public authority will be required to take action to protect that person.
The ‘overview’ guidance highlights the human rights which are of most direct relevance to health and social care. For some, it provides brief examples of when the right/s might come into play.
Example 1: the right to respect for private and family life
This right could include providing support to enable people to maintain ordinary family relationships, such as supporting disabled parents and therefore protecting children from becoming their primary carers.
Example 2: the right to life
Hospitals and care homes must take action to ensure that all people using their services receive adequate hydration and nutrition and proper administration of medical care. In certain circumstances the right to life will also require an official investigation into an individual’s death, such as where the death has resulted from a failure on the part of the public authority to protect the person’s life.
The ‘outcomes’ guidance is structured around the CQC’s 28 key outcomes for service users. For each outcome, the guidance provides a series of equality and human rights prompts.
The outcomes are in turn grouped into five main areas:
For each area, the ‘outcomes’ guidance provides the overall legal and policy context relevant to equality and human rights. It also offers examples of putting equality and human rights aspects into practice. However, these are not always expressly connected to specific Convention rights and readers should therefore use the ‘outcomes’ and ‘overview’ guidance in conjunction with each other to obtain more comprehensive advice.
A children’s hospice was committed to providing equal access. However, staff had not considered the spiritual or religious aspects of care. This was picked up via an inspection and followed up through monitoring from the (then) Healthcare Commission. The hospice now has a chaplain with good links to the wider ecumenical community; provides access to all major religious texts; and provides awareness training to ensure staff members know about the correct storage and usage of these texts.
The hospice also has policies and training on how to handle the impending death of a child according to various religious and cultural protocols. At a time such as the death of a child, religion and culture become a very important aspect of care and, through regulation and working together, the hospice has developed excellent provision.
(Source: Equality and human rights in the essential standards of quality and safety: Equality and human rights in outcomes, p. 16.)
The overview guidance adds that other international human rights treaties are relevant to the provision of health and social care. Although these treaties are not part of domestic law, the UK government has undertaken to comply with the rights set out in them. The guidance highlights the following United Nations treaties:
The guidance sets out the most relevant provisions of each of these treaties for health and adult social care providers.
The overview guidance provides practical suggestions for inspectors and assessors on how to gather people’s experiences about equality and human rights issues during site visits. It notes that for some outcomes, it is possible to make judgments on equality and human rights using existing data or evidence from providers - for example, if a provider has already used a robust method to gather the views of people using services about whether they have been treated with dignity.
However, gathering evidence about outcomes relating to equality and human rights also relies greatly on gathering evidence from people using services: for example, asking people for their views or directly observing the care, treatment and support they receive.
The guidance states that it is up to the inspector to decide on the best tool/s to gather the required evidence. Among those it suggests are:
The overview guidance explains that, in the event of a possible breach of a Convention right, only the individual concerned or someone acting on their behalf can take action under the HRA. This is an individual remedy and not the role of an inspector or assessor in relation to the service as a whole, although the guidance does explain what inspectors and assesors should do if they think a provider may be in breach of equality or human rights law.
There is no single way of dealing with a potential human rights violation: the proper response depends on the context and circumstances.
The guidance notes that the CQC and EHRC expect that the majority of human rights and equality issues uncovered through CQC evidence gathering and analysis would be resolved through action under the Health and Social Care Act 2008. Under an agreement between CQC and the EHRC, the two bodies may share information in order to better carry out their regulatory roles.
The guidance provides step-by-step advice about what an inspector and their manager should do if they believe that there is a potential breach of human rights or equality law that cannot be resolved through action under the Health and Social Care Act. It provides email contacts for equality and human rights advisers in the CQC.
The overview guidance includes a detailed explanation of legal requirements for health and social care providers under the Equality Act 2010 and how this law can be enforced. It advises inspectors and assessors what to do if they have evidence of suspected breaches of equality law. It sets out the requirements of the public sector equality duty, which came into force in April 2011. It sets out how this duty applies to public authorities (listed in Schedule 19 of the Equality Act 2010) and to independent and voluntary sector providers in respect of public functions they perform for public bodies. See the EHRC’s Equality Act guidance.
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