The human rights of older people in health care

Elaine Campbell, Head of Policy at Age Concern, reviews an important parliamentary report addressing the need for a human rights based approach to the care of older people. She argues that legal and cultural change is vital to ensure that older people are treated with dignity and respect in both hospitals and residential care.

The Joint Committee on Human Rights (JCHR) is a parliamentary committee comprised of members of both the House of Commons and the House of Lords.  The Committee is charged with considering human rights issues in the UK. The Commission has recently published The Human Rights of Older People in Health Care, which examined how human rights principles could be applied to ensure that older people are treated with greater dignity and respect when being cared for in hospital or in residential care, whether by the private, public or voluntary sectors.

Breaches of human rights

The report considered a number of areas which offer challenges to the enjoyment of human rights, including:

• discriminatory criteria for treatment;
• barriers to older people in voicing concerns;
• awareness of health care staff in relation to human rights principles; and
• considerations for those working in health care settings to take sufficient account of older people’s human rights.

The inquiry examined how current practice could be improved so that human rights are mainstreamed into policy development and in practice as a positive obligation, rather than simply as a tool for seeking redress when rights are breached.

The Joint Commission found myriad examples of breaches of older people’s human rights. These included neglect, abuse, malnutrition, inappropriate use of medication, lack of dignity and privacy and confidentiality issues.

Cultural change

The Commission report made a number of recommendations to improve practice, but fundamental changes in the culture of organisations are required so that older people are able to enjoy human rights protections fully.

Better guidance from the Department of Health is also required. The Commission acknowledges recent work by the Department which is promising, but human rights remain peripheral to policy development. In order to make the Human Rights Act integral to policy-making, the Department must show stronger leadership.

Extend scope of Human Rights Act

A narrow interpretation by courts of the applicability of the Human Rights Act has created an anomalous system whereby similar provision is covered by separate legal structures. While public authorities which directly provide services are covered by the Human Rights Act, services which are contracted by public services but out-sourced to independent providers may not fall within the remit of the Human Rights Act.

Despite receiving similar types of care, regardless of provider, older people are protected under the Human Rights Act in a public authority care setting, but not in a private or voluntary sector setting. It was recognised, however, that services run by voluntary sector providers outperformed both private and public sector-run homes.

The JCHR recognises in the report that this is a problem which still requires a remedy. The fact that government has not yet brought voluntary and private sector homes under the scope of the Human Rights Act is perhaps an indication of how slowly the culture within organisations changes with regard to human rights. The Human Rights Act came into force seven years ago, yet this gap has not been filled.

From duty of care to right to receive care

The JCHR notes a significant distinction between a ‘duty to provide’ under care standards legislation and a ‘right to receive’ under human rights legislation. This assessment could have strong, positive implications for users of services. It helps us move from a consumerist, need-based approach to an entitlement basis. It is not only a distinction which service users can employ to create change but, if this distinction is recognised by service providers, it is also a tool for changing the culture within organisations.

The JCHR recognised the importance of human rights training to people working in hospital and care home settings. Despite a recommendation by the Audit Commission in 2003 that human rights training should be integrated into ongoing training plans for all frontline staff, there is little evidence that this has happened.

Age equality laws

The report specifically recommends the extension of anti-discrimination legislation to cover the areas of goods, facilities and services with regard to age. This would have a far greater reach than just in the arena of health care, and many campaigners will welcome this recommendation as a strong indicator of the complementarity of human rights and equality. The introduction of proposals for single equality legislation both in Great Britain and Northern Ireland is being hotly anticipated, and this recommendation will provide a boon for those arguing to extend provision in what has been seen as a complex and difficult area to legislate.

Independent advocates

Legislation will not get the job done on its own. Older people need greater empowerment to take advantage of the protections offered by the Human Rights Act and other rights instruments. However, the Commission recognises that the power imbalance between users of care services and providers will mean that older people, particularly those who are quite vulnerable, may have difficulties in complaining. If organisations have little understanding of human rights, it is no wonder older people have little understanding of how human rights legislation can make a positive impact on their lives. The report recommends the use of independent advocates, trained in human rights principles, to assist older people. In order to complain, older people need to have sufficient information to be knowledgeable about the rights. This approach could be beneficial to informing older people, their relatives, carers and advocates. In addition, the process of providing information that is accessible could play an important role in mainstreaming human rights across health-care organisations.

Impact

The impact of the JCHR report is yet to be determined. Whether recent positive developments from the Department of Health will continue to grow is far from certain. The read across implications to Northern Ireland are also unclear. The Bill of Rights for Northern Ireland, currently being debated by a Forum consisting of civil society and political representatives, could effect change by enshrining some of the issues under discussion within the JCHR through, for example, a right to health care which could be interpreted to cover contracted-out services, as well as those provided by the statutory sector. The interest and commitment shown by those giving evidence to the Joint Commission is a welcome start, but much more work remains to be done.

A copy of the Human Rights of Older People in Healthcare can be found at www.publications.parliament.uk/pa/jt/jtrights.htm. It was first published on 14 August 2007.

Note: a report, Older People and Domiciliary Care, was issued by the Northern Ireland Audit Office in October 2007. For more information visit www.niauditoffice.co.uk