Equality and Human Rights Commission

This document provides practical information for professionals working with older people about using human rights in their work. The document sets out the key provisions of the Human Rights Act 1998 (HRA), the European Convention on Human Rights (ECHR), and UN human rights standards. It considers key human rights issues facing older people and relates these to particular rights and specific articles in the ECHR and the UN human rights instruments. It uses real life case studies to illustrate the relevance of human rights. It outlines a number of projects and organisations that seek to engage older people in human rights issues. The document illustrates the relevance of human rights well, directly linking practical examples with the various provisions of human rights law. It does not include specific guidance on using human rights in advocacy or on making complaints or legal challenges concerning the human rights of older people.

• Human rights are highly relevant to many of the challenges faced by older people.
• The human rights of older people are protected by national, European and international law.
• The potential of using human rights in work with older people has not been fully tapped: levels of understanding and applying human rights in policy and practice are low – but growing.
   

The context

On the basis of a review of existing literature, the report notes that the extent to which human rights are integrated into both policy and practice in the UK is low. It notes a number of opportunities and challenges in ensuring human rights are reflected in policy in the UK:

• the role of the Equality and Human Rights Commission (EHRC) in promoting and protecting the human rights of older people
• the role of the Care Quality Commission in embedding human rights in regulation and inspection
• the possible development of a Bill of Rights
• the need for clarity in the applicability of the Human Rights Act (HRA) to those who fund their own care
• the absence of an international treaty specifically protecting the rights of older people, and
• the lack of enforceable economic, social and cultural rights in the UK.

The report notes that much of the existing literature indicates low levels of awareness of the HRA in practice, and, further, what awareness there is tends to focus on health and social care. The report considers the barriers that may discourage older people from using human rights. These include:

• negative perceptions and misunderstanding about human rights
• a lack of information about human rights for older people and those who work with them, and
• difficulties experienced by older people in accessing justice and making complaints, including fear of consequences, lack of confidence, lack of accessible mechanisms and limited access to legal aid.

The legislation

The document explains that the HRA brings most of the rights in the European Convention on Human Rights (ECHR) into UK law. The HRA applies to everyone in the UK and places public authorities under a duty to respect the rights contained in the HRA. It notes the limitations of this that arise from the legal understanding of 'public authority'.The document provides a useful list of the UN human rights treaties that the UK has signed up to, noting that whilst not directly enforceable in UK courts the treaties have potential to influence issues affecting older people. The document notes that:

• the UK government has to submit regular reports to the relevant UN body concerning its implementation of these treaties
• other organisations may submit ‘shadow’ reports, and
• in some cases the UK has agreed to allow individual complaints concerning breaches of a treaty to be taken to the relevant UN body.

The document also looks at the non-binding UN Principles for Older Persons, describing them as an 'important and powerful statement'.

The report explains that some rights are absolute and some are rights that may be limited under certain circumstances. It elaborates the content of those rights it considers particularly relevant to older people. The list is not limited to rights contained in the HRA, but draws on all of the instruments listed above:

• the right to life
• the right not to be treated in an inhuman or degrading way
• the right to liberty
• the right to respect for private and family life, home and correspondence
• the right to freedom of though, conscience and religion
• the right not to be discriminated against (on many grounds – not just on grounds of age)
• the right to peaceful enjoyment of possessions
• the right to education
• the right to an adequate standard of living
• the right to the highest attainable standard of health
• the right to work and other employment rights.

Human rights issues

This third chapter takes as its starting point the issues faced by older people – which are then related to human rights provisions – rather than a potentially more esoteric approach of starting with rights and explaining why they are relevant. The chosen approach makes the relevance of the chapter immediately clear and makes it easier for the reader to identify which parts may be most relevant for their own work or situation.

Many of the topics are illustrated with real life case studies – some of which are derived from case law. The issues covered are:

• elder abuse and neglect
• lack of dignity/privacy
• hospital discharge and inadequate care assessments
• life-sustaining medical treatment
• inappropriate medication
• detention
• inquests
• confidentiality and access to information
• care home placements
• quality of life in residential care/hospitals
• discrimination and disadvantaged groups
• social exclusion and access to services
• poverty
• housing
• learning and skills
• employment and pensions.

In each topic the relevant right(s) are identified. (Readers can then refer to a table contained in Chapter 2 that lists the instruments each particular right is found in.) Examples are given of ways in which providers may be falling short of their obligations under the various human rights instruments.

Example 1: elder abuse and neglect

This can include malnutrition and dehydration; physical, psychological or sexual abuse; ignoring calls for help; unchanged sheets; not feeding people properly; bed sores; poor hygiene; excessive restraint; and bullying, patronising and infantilising attitudes. Severe elder abuse may breach the prohibition on inhuman or degrading treatment. In less extreme cases, elder abuse may raise issues under the right to respect for private life, which includes a right to physical and psychological wellbeing. The right to life may be breached where abuse or neglect leads to the death of the person involved.

Older people may face abuse or neglect in their own home, from care workers, family members or friends. Private individuals cannot be held directly responsible for human rights abuses under the Human Rights Act. However, public authorities have a positive duty to protect certain rights under the Act, including the right to life, the right not to be treated in an inhuman or degrading way and the right to respect for private and family life. If a public authority is made aware of evidence that an older person is being abused, its failure to act may breach these rights.

Example 2: lack of dignity or privacy

This can include mixed-sex wards; privacy and dignity during personal care; privacy while using the toilet; sensitive medical advice being given when other patients can overhear; and care-home residents being fed while on the commode.

Lack of dignity / privacy raises issues under the right to respect for private life and, in more extreme cases, the prohibition on inhuman or degrading treatment.

Engaging older people

The final chapter is an overview of projects and organisations that have sought to engage older people in human rights issues. Examples include:

• research carried out and/or commissioned by Age UK including qualitative research on attitudes of older people towards human rights
• training and capacity-building delivered by the British Institute of Human Rights (BIHR) to over 50 organisations working with older people
• information resources published by BIHR and the Scottish Human Rights Commission
• an inquiry into the human rights of older people in healthcare carried out by the parliamentary Joint Committee on Human Rights
• a three-year research project funded by the European Commission looking at dignity and involving health care professionals, social scientists and philosophers – the project used focus groups with older people as part of its research
• projects set up by HelpAge International that seek to engage older people in policy processes
• the EHRC’s inquiry into the human rights of older people and training resources relating to the care and support of older people developed by the Scottish Human Rights Commission.

Related equality messages

Legislation on equality and discrimination can contribute to the realisation of rights for older people as well as addressing problems older people face in many areas of life.

Date of review

March 2012

We hope that you found the resource helpful and easy to use. Please let us know about other guidance or references that you think we should include. Send us your feedback.