Still confused on how human rights law and how it applies to the way you care for others? Don’t worry, Rachel Griffiths, Mental Capacity Act and Human Rights Consultant, is here to help.
“I’m drowning in a great soup of law!”
This is how a care home manager put it to me when I made some passing comment about the value of human rights law, as I’m prone to do. Perhaps a bit rashly, I had stressed the importance of Article 8 of the Human Rights Act.
She let me have it. She despaired, she said, of finding ways to make sense of this stuff in a way that improved practice. In particular, she couldn’t make it seem relevant to her staff who wanted practical guidance in how to care for the people in front of them.
I do sympathise. But in fact, this part of human rights law does translate into practice, and it does so in an intuitive way.
An Englishman’s home is his castle
At its heart, this ancient bit of law means we – of any gender, of course – can live as we want provided that we don’t harm other people, and ‘the state’ – police, social workers, council officials or anyone else – can’t interfere in our lives unless we invite them, or if it’s essential to prevent harm.
This is reflected in slightly more modern language in Article 8 of the Human Rights Act 1998 (HRA) https://www.legislation.gov.uk/ukpga/1998/42/pdfs/ukpga_19980042_en.pdf, which guarantees, in general, everyone’s right to respect for private and family life, home and correspondence.
This right has a very wide scope, protecting four elements of our lives:
- Private life
In addition to personal privacy, this covers issues such as personal choices, relationships, physical and mental wellbeing, access to personal information and participation in community life.
- Family life
This is interpreted broadly, it depends on circumstances and existence of close personal ties. It does not just cover blood or formalised relationships: it protects our right to choose our friends and go to the religious places or clubs of our choice.
- Home
Not a right to housing, but a right to respect for a home someone already has. It also includes the right to enjoy your home without interference from others, particularly ‘the state’.
- Correspondence
This does sound a bit old-fashioned! Nowadays, it covers all forms of communication including phone calls, letters, text messages, emails and so on. Provided we don’t lack capacity to deal with our own communications, hearing from old friends, buying things online or sharing our views on social media can all bring pleasure into life.
Article 8 can be restricted
It is a ‘qualified right’, which means it can sometimes be restricted. We all know that, in some circumstances, police, or doctors, or social workers, may be able to interfere with your right to a private and family life to protect your health or well-being, or other people’s health or safety. But Article 8 helps ensure they don’t overdo it and abuse their powers.
‘Necessary and proportionate’
This is a phrase everyone should recognise from the Mental Capacity Act, which says that any restriction or restraint is only lawful if it is;
- Necessary to prevent harm to that person, and
- A proportionate response to how likely that harm would be, and how serious it would be
Article 8 is based on the same way of assessing when it is lawful to restrict someone’s rights, except that it also takes in the idea of protecting other people from harm.
Everyone was deprived of visits from relatives and friends during the lockdown: all of us were prevented from going out as we normally would. It was drastic but was of course completely legal: our article 8 rights needed to be restricted in the interests of public health.
The restrictions on our right to live as we choose, in this case to protect public health, can be as strict as they need to be to keep people safe. We had been hit by an unknown virus, it was spreading fast and killing large numbers of people, especially older people, and we had no treatments that were known to work, nor any vaccines against it. The extreme restrictions imposed in that first lockdown were certainly necessary to prevent harm, and a proportionate response to the likelihood of that harm and how serious it would be.
Must be still necessary and still proportionate
When care settings were hit by the lockdown, all QCS’s guidance emphasised that these very restrictive ways of providing care must not be allowed to become ‘the new normal’.
As the situation changed, the challenge for providers, and for government too, was knowing how and when to loosen the ties and gradually return to normal. It can be too easy to get used to focusing on safety at the expense of allowing people again to live normally. It is sometimes hard to re-start habits of ‘creative risk-taking’ that we used to take for granted.
Article 8 in practice
Article 8 demands that we work in a person-centred way and avoid the ‘blanket rules’ that became normal during lockdown. This is where we need to revisit our assumptions and remember the huge importance of promoting Article 8 rights. A care home I went to that opened everyone’s letters, even their birthday cards – ‘in case there was anything important in them’ – was not just taking away from residents the simple pleasure of opening their own post. It was breaching their right to having their correspondence respected as private. If someone needs help to read what’s inside the envelope, or a friendly hand is needed to put the card up on the cupboard, that’s different.
Many people who use care services continue to find their cultural background vital to their happiness, and still gain hugely from choosing their clothes, music, friendships, and hobbies. In the same way, younger people with learning disabilities may not want to go to bed at 8pm; they want to enjoy as far as possible the music and the social activities that other young people their age can enjoy.
See what innovative, person-centred ways your staff can come up with to enhance people’s rights underw Article 8. We’d love to share your ideas!
