Let’s be clear on the human rights threshold

Today I joined a Department of Health and Social Care webinar on the Care Act easements. The limits of the technology were very clear. Despite the organisers trying their best, every speaker sounded like they were underwater and there was a lot of background noise (how hard is it to mute your microphone?!).

Elements of the talk were useful, reinforcing what I understood from my reading of the guidance. But it is bugging me that no one is talking about what ‘care necessary to prevent a breach of human rights’ might look like. I understand that this is a last resort, and that everyone is hoping that Councils won’t get to that point. But it is possible that at least parts of the country will. And yet there has been very little guidance on applying the human rights threshold.

So I am going to throw my two pence in. You are welcome (and also I am sorry, but not really sorry, no one is making you read this!).

The first right referred to in the guidance is article 2 the right to life. This prevents ‘the state’ from arbitrarily killing people (phew!) but also carries with it a positive obligation for state organisations to take steps to safeguard people’s lives. So far, so good.

But this does not equate to an obligation to put in care if being without care will result in death. The obligation only exists if there is a real and immediate risk, that the state organisation knew or ought to have known about, and where the state organisation has accepted some responsibility for the individual’s life. See Rabone v Pennine Care NHS Trust for details on this.

So if someone cannot eat or drink without support, and the local authority has been providing that support, then withdrawing the support could well be a breach of human rights. But it might not be so clear of the risk of death is less concrete, for example, from leaving the oven on, or walking in front of a car, or catching COVID-19. Or if it is less immediate from having a diet that isn’t suitable for their diabetes, or contracting an infection from pressure sores that might occur if they stay in their bed all day.

The guidance also refers to article 3 the protection from inhuman or degrading treatment. The positive obligation requires steps to be taken to prevent inhuman or degrading treatment occurring.

But lack of appropriate support alone will not be inhuman or degrading treatment. The facts of Bernard v Enfield London Borough Council make pretty uncomfortable reading. Mrs Bernard was in pretty dire circumstances. She was wheelchair bound but in accommodation that was not accessible. She could not access toileting or bathing facilities, the kitchen was not available to her and she was completely reliant on her husband for all of her needs and could not take part in raising her children. But the court found article 3 was not breached.

I’ll let that sink in for a minute.

Now in that case the court considered the statutory duties in place, the Council’s motivation and intentions and decided that it wasn’t inhuman or degrading treatment for the Council to leave her there.

However, it was found to be a breach of her article 8 rights because of the impact it had on her children and her relationship with them. But as far as I am aware, this is the only time this argument has succeeded in the context of health and care duties.

The case of Anufrijeva v Southwark London Borough Council involved similar circumstances where accommodation was not suitable and the Council had not acted to resolve the issues. But article 8 wasn’t breached. It seems the difference was that children were not adversely affected.

So in many cases articles 3 and 8 won’t be breached if care is not in place fully or at all.

What this means is that if things get really, really bad, a lot of vulnerable people could find themselves with limited or no support whilst local authorities are still complying with the Coronavirus Act 2020 and the Care Act 2014 as amended. The consequences of this for their individuals could be serious. If the system gets that stretched then it may be something the local authorities will have to do, however reluctantly.

I think we should at least acknowledge this. Even if there isn’t anything we can do about it.

In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority

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