We have launched an inquiry into the protection and promotion of human rights of older people requiring or receiving care and support. Read on for answers to frequently asked questions about the inquiry.
All public authorities have duties to promote human rights. At its most basic, care and support offers protection of people's right to life under Article 2 of the European Convention by ensuring their most fundamental physiological needs, such as eating, taking medication, getting up in the morning and going to bed at night are met. But for those who require it, and those with whom they share their lives, the availability and organisation of care and support also determines whether they enjoy a number of other important human rights including freedom from inhuman and degrading treatment (under Article 3 of the Convention) and the right to respect for private and family life (under Article 8). These rights are underpinned by some important human rights principles: dignity, autonomy and respect.
These rights - and the principles behind them - are at the core of what good care and support should mean at a day-to-day level. While they may sometimes appear abstract, they are really about such mundane things as eating a meal when you are hungry rather than when a service wants to provide it; having a bath in privacy and comfort; maintaining contact with your children or your grandchildren.
There are different types of potential risks to human rights:
- Risks of human rights breaches by default or omission
Many of the risks to human rights we anticipate finding evidence on are likely to be the result of lack of understanding or systemic failure to take account of human rights issues (when commissioning services for example).
There may also be unintentional breaches that arise from a particular home care provider giving poor care that leading to neglect or which otherwise falls short of human rights standards.
- Intentional human rights violations
We know that there are also likely to be some instances of intentional human rights violations (for example undignified or degrading treatment, abuse or neglect) - but the incidence of this kind of knowing malpractice is likely to be lower than ‘risk by default’.
Examples of the kinds of specific risks we will be looking for include:
- Risks to Article 8 rights (right to private and family life): care that interferes with personal dignity; interference in personal autonomy; being forced to accept an unfamiliar daily timetable; severe social isolation and lack of meaningful contact with one’s family.
- Risks to Article 3 rights (freedom from inhuman and degrading treatment) – for example lack of care that amounts to abuse or serious neglect; intentional ill-treatment by a care provider.
- Risks resulting from failing to balance different kinds of risks when dealing with qualified rights such as Article 8 – for example a public authority can interfere in Article 8 rights if this is permitted by law and is proportionate so may, for example, need to balance an older person’s right to respect for their home against the need to tackle a risk of abuse when taking decisions about safeguarding.
- Risks to Article 9 rights (freedom of thought, conscience or religion) – for example serving meals that do not comply with the dietary requirements of someone’s religion)
- Risks to Article 14 rights (on non-discrimination in the enjoyment of other rights) - for example there may be a breach of Article 14 and Article 6 (right to fair trial) resulting from failure to ensure older people can access complaints procedures/redress through the courts as easily as younger age groups.
- Risks arising from gaps in Human Rights Act protection – for example the possibility that self-funders purchasing care from private providers might not be protected because of the legal definition of a ‘public function’ associated with the Human Rights Act.
In Scotland human rights in social care is a matter for the Scottish Human Rights Commission. In Wales social care is a devolved matter. There are key differences in approaches to home care between the countries. For example in Scotland there is a different legislative framework and personal care is provided free of charge. In Wales the debate on the future of social care has taken a very different shape to that in England.
The scope for the Inquiry covers community based domiciliary social care. This includes ‘supported living’ arrangements and ‘extra care housing’, where people are living in their own flats or rooms within a communal building, but excludes all forms of residential or nursing care homes. The type of assistance typically provided by domiciliary social care services includes things like:
- Assistance with washing, bathing and getting dressed
- Assistance with taking regular medication, the changing of dressings and other minor health care needs
- Assistance with meal preparation or meals on wheels
- Assistance with laundry
- Assistance with shopping
- Escorting people outside the home, for example, to go to doctors appointments.
Despite the potential risks to human rights when care is provided ‘behind closed doors’ in people’s own homes, much greater attention has been paid to the human rights of older people in institutional settings such as hospital, residential and nursing care, including the recent Inquiry by the Joint Committee on Human Rights (into the human rights of older people in healthcare).
There has not been a systematic inquiry into the human rights of older people receiving or requiring home based care and support. This is surprising as only a small proportion - less than 5% - of older people move into residential care. A far higher proportion use home based care and support services, involving significant amounts of public expenditure. Two thirds of all expenditure on social care for older people is on home care.
There is no consistency among studies as to what demographic group constitutes ‘older people’. The term is used for age-groups starting from as low as 50 years. However, the most frequently used definition is people aged 65 years and over. Therefore, 65 and over has been adopted as the definition for this Inquiry.
A significant number of older people fall into categories that make them disproportionately vulnerable to human rights violations – for example, if they:
- are frequent users of public services
- lack a voice or the means to get redress
- experience prejudice and discrimination
- suffer abuse or neglect
- are dependent on the care of others
- are in vulnerable situations
- are socially excluded
- experience multiple disadvantage
- have mental capacity issues, which affect a large proportion of older people
Moreover, older people are not a homogenous group and some will have experienced prejudice or discrimination earlier in life (such as racism, sexism, homophobia or through being disabled), which typically follows them into old age and could make them especially vulnerable to violations of their human rights. In particular, a higher proportion of older people experience disability; between the ages of 16 and 19, the prevalence of disability is about 7%, increasing to over 35% for those aged 60 to 64, and to 59% for people over 85. Not all are at risk of human rights abuses – for example, some people over 50 are affluent, enjoy good health and participate fully in their communities.
While the Inquiry is focused specifically on older people it is also important to note that the majority of users of social care are likely to be disabled for the purposes of the Equality Act 2010.
The Commission’s Disability Committee, chaired by Mike Smith, were consulted during the planning stage of the Inquiry and their feedback has been taken into account in drawing up the final plans.
Evidence from older people, their family and friends will provide examples that will illustrate the personal impact of lack of attention to human rights on those receiving home care. It will also flag up key areas of concern for those receiving services that can be fed into the other stands of evidence gathering (for example, survey design).
Evidence from workers will highlight the extent to which home carers are trained and encouraged to support older people’s human rights. It may also include examples of ‘whistleblowing’, exposing poor practice, neglect and abuse.
Third sector, including advice and advocacy bodies, will provide insight at a local/regional/national level of the issues that they have dealt with.
All recommendations will be robust and rooted directly in the Inquiry evidence base. We will draw on the expertise from our Advisory Group in discussing recommendations and ensuring that they are both practical and effective in addressing any areas of concern highlighted in the evidence base. In formulating the recommendations we will focus on evidence of good practice and look closely at how and why this has worked so that we can formulate recommendations on wider application.
The Advisory Group for the Inquiry includes senior representatives from a wide range of stakeholder interests including organisations representing older people and carers, home care providers, trade unions, regulatory bodies, and central and local government.
We recognise that the Inquiry is taking place against a backdrop of major resource constraints for public bodies so will also pay particular attention to affordability and feasibility of our recommendations.
Last updated: 19 May 2021