Fourth Report - Protecting human rights in care settings

People in care settings have the right to the highest attainable standard of health, as protected by Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). They also must have their personal needs met, in light of the protection against torture and inhuman or degrading treatment (Article 3 ECHR) and the principle of human dignity.

Even one instance of inadequate service that goes unnoticed is too many.

The CQC must adequately monitor providers’ compliance with expected standards and hold providers accountable in a timely way.

Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) notices relate solely to cardiopulmonary resuscitation. Such notices must never be applied in a blanket fashion to groups of individuals, nor be conflated with decisions about other treatment escalation or admission to health and care settings

The Government must work with providers, the CQC, and other stakeholders to take steps to raise awareness and prevent inappropriate use of DNACPR notices.

There must be adequate involvement of care users and their relatives and representatives in DNACPR notices, so as to secure the care users’ right to private life and their personal autonomy under Article 8 ECHR. Comprehensive records must be kept, monitored, and reviewed periodically. The Universal Principles for Advance Care Planning are welcomed, but it is crucial that the principles are observed in practice.

In its monitoring, assessing, and inspecting activities, the CQC must continue to seek assurances that care users are placed at the centre of DNACPR notices, in a way that protects their human rights.

Restrictive practices should only be used where strictly necessary, as they could amount to a breach of the prohibition of torture and inhuman or degrading treatment (Article 3 ECHR) and the right to liberty and safety (Article 5 ECHR). The Government must work with the CQC and the Ombudsman bodies to review existing guidelines to ensure that they comply with the requirements of human rights law, and to take appropriate steps to ensure that providers only have recourse to restrictive practices as a last resort. This is of particular importance for people with dementia and people with a learning disability and/or autism, who may be more likely to be subject to restrictive practices, due to their specific health and care needs.

Every person who is deprived of their liberty without the completion of an application within statutory timeframes is unlawfully deprived of their liberty. Where this happens, it is clearly unacceptable and constitutes a breach of the right to liberty and security (Article 5 ECHR). (Paragraph 53) Protecting human rights in care settings 35

While Liberty Protection Safeguards (LPS) are not fully implemented, the Government must work with the regulator and all stakeholders to ensure that providers fully understand the functioning of the Deprivation of Liberty Safeguards (DoLS) and comply with statutory requirements.

Where unlawful detention has taken place, care users and their representatives must be able to challenge it.

Non-means-tested legal aid must be available for all eligible persons subject to deprivation of liberty, regardless of whether an authorisation is in place.

It is important that the new LPS framework does not repeat the failings of the DoLS framework, particularly regarding delays in processing, legal aid, and data gathering. We appreciate the Government wishes to ensure that it gets its implementation right, but we are concerned that there is no timetable for full implementation.

The Government must not allow any unnecessary delays to the implementation of the LPS framework, should commit to a firm timetable for its implementation, and should update us every three months on progress.

Specific training on human rights and its effects on the provision of services must be given by all registered providers to staff. The CQC should work with all stakeholders to ensure this is happening in practice. It is crucial that training programmes go beyond simply stating rights or obligations, and effectively demonstrate the relevance of and use of human rights in making decisions regarding care and treatment.

A public authority cannot abdicate its duty to protect the human rights of the people it serves when it outsources services to third-party providers.

Where public bodies outsource the provision of health and care through commissioning, they have an ongoing duty to ensure that the human rights of care users are respected. There must be sufficient provision for monitoring and accountability by the contracting public authority, to allow it to identify whether human rights obligations are being discharged. (Paragraph 65) Visiting Arrangements

We still do not believe that there are sufficient measures in place to ensure adequate respect for the right to private and family life (Article 8 ECHR) in relation to care users and visiting arrangements in care settings.

The Government must introduce legislation to secure to care users the right to nominate one or more individuals to visit and to provide support or care in all circumstances, subject to the same infection prevention and control rules as care staff.

The Government must legislate to give the CQC the power to require care settings to inform them of any changes to their visiting status, and to report live data on levels of visiting and restrictions. The CQC must make compliance with visiting restrictions a key consideration when undertaking its regulatory and monitoring roles. (Paragraph 84) 36 Protecting human rights in care settings Application of the Human Rights Act

The HRA does not apply equally to all those in care settings. It only applies when care is local authority funded or arranged. The discrepancy between levels of legal protection for those in care settings can seem unfair – the human rights of all those receiving care should be protected equally. That the Government appeared to be unclear as to the applicability of the HRA is of great concern.

The Government should consult on whether the protections of the HRA should be extended to those receiving care and support from all regulated providers. This could be done, for example, by repealing s. 73 (3) Care Act 2014, and amending s. 73 (2) Care Act 2014 to read: (2) The provider is to be taken for the purposes of [section 6(3)(b) of the Human Rights Act 1998 (acts of public authorities) (and the equivalent clause of the Bill of Rights Bill 2022–23, c 34(1)(b) (meaning of “public authority”)) to be exercising a function of a public nature in providing care or support. (Paragraph 93) Complaints mechanisms

Complaints mechanisms that involve care settings must be clarified and streamlined. All complaints relating to care settings should be investigated either by the LGSCO or by the PHSO, and not by the CQC. Section 120(4) MHA 1983 should be amended accordingly to transfer the duty to investigate complaints related to the Mental Health Act 1983 in England, along with the CQC’s enforcement powers for such investigations and decisions, from the regulator to the LGSCO or the PHSO. This change would help minimise some of the confusion as to which body one should direct complaints, and could better enable the CQC to focus on its monitoring and regulatory role.

The Government should consult on giving Ombudsman bodies the power to look proactively at areas of care in which problems are perceived, but people might not be able or willing to lodge formal complaints.

The LGSCO, the PHSO, and the CQC must have a “no wrong door” policy for complaints. If a complaint is out of scope of one body, they must direct it to the appropriate organisations in an adequate timeframe.

In its regulatory and monitoring role, the CQC must take proper account of how complaints are being handled by providers, and how decisions made by the Ombudsman bodies are being implemented. The CQC must also routinely look at how health and care contracts between individuals and providers are being terminated and work alongside the Ombudsman bodies and providers to ensure that individuals are not suffering retaliation after lodging complaints.

The confusion over the complaints system in care settings has an impact on the ability of care users to enforce their rights.

Along with the recommendations above, complaint handling bodies together with the Government must consider options for raising awareness of the existing complaints processes. (Paragraph 109) Protecting human rights in care settings 37