Human Rights and Social Care Forum

About the lunchtime seminar: This seminar was about exploring how to translate human rights, the rights and freedoms contained in the Human Rights Act 1998, into policy in health and social care. The speakers included Alex Ruck Keene (KC), barrister with focus on Mental Capacity Law and Mental Health Law and special advisor to the Joint Committee on Human Rights’ Inquiry into Human Rights in Care Settings as well as Nicola Evans, Equality Lead and Head of Advice/Assistance at the Older Peoples’ Commissioner in Wales.

Summary of the seminar

Background: Public authorities, including the National Health Service (NHS) and care homes (according to s73 of the Care Act 2014), are required to operate in line with the Human Rights Act 1998. In order to do so, an organisation may decide to put in place policies on one or more rights/freedoms contained in the HRA 1998. There are various examples, such as the ones mentioned below: Older Peoples’ Commissioner in Wales Guide to Human rights in care homesNHS Solent Trust Equality and Human Rights Policy

• What is policy? Policy in essence covers a broad range of documents/statements/directions often published by public or private organisations and describe how a particular topic is to be handled. Policies are not law and mostly not legally enforceable as such. They thus apply in a limited way.
• How is policy useful for human rights protection and vice versa? The HRA and the universal human rights framework provides a framework based on principles of dignity and equality that can be useful to think through desired outcomes and necessary practical aspects for health and social care. This is important especially in the light of the legal obligation of public authorities and organisations discharging a public duty to act in line with the HRA 1998. Human rights language furthermore can provide a basis for discussion and often adds weight to a policy.
• When creating a new policy document, it is useful to think of following points:
• Clarity around aim and purpose of the new policy amongst other policie, laws and regulations that already exist. Human rights based policies may not always be the most useful or appropriate way forward to achieve a certain aim. Policies may also rely on another or additional legal basis, such as consumer law.
• Clear understanding about who is able to rely on the rights and freedoms that this particular policy is supposed to protect/respect/implent and who is bound by it.
• Clarity around how the policy will be useful to put human rights into practice. Particularly, how will people be able to shape their practice in line with the policy, how may it interfere with other policies/laws, and how will people be able to enforce it when the policy is not being followed.
• Co-production i.e. involving people who are supposed to be able to rely and those who are going to be bound by it, people with experience of the topic at hand etc. when planning and creating the policy is key.
• There are some organisations like the British Institute of Human Rights which has created resources to help health and social care providers how to create policies in their own organisations that protect and respect the rights of people drawing on care