Response of the Equality and Human Rights Commission to the UN Consultation on
the human rights of older persons.
Consultation details
Title:
Source of consultation:
Date:
Public consultation on the human rights of older
persons
Office of the High Commissioner on Human Rights
March 2013
For more information please contact:
Name of EHRC contact providing response and their office address:
Nony Ardill, Senior Lawyer,
Equality and Human Rights Commission
Fleetbank House, 2-6 Salisbury Square, London EC4Y 8JX
0207 832 7857
Telephone number:
Nony.ardill@equalityhumanrights.com
Email address:
1. Introduction
1.1
The Equality and Human Rights Commission (the Commission) has been accredited
as a National Human Rights Institution (NHRI) with Category A status and is an active
member of the International Co-ordinating Committee for NHRIs. Under the Equality
Act 2006, the Commission has a statutory duty promote human rights, as well as a
unique role in promoting equality and diversity, working towards the elimination of
discrimination, and building good relations between and among groups. It also has
responsibilities in nine areas of equality: age, disability, gender, gender identity, race,
religion or belief, sexual orientation, marriage and civil partnership and pregnancy and
maternity.
1.2
The Commission's remit covers Great Britain: that is, England, Scotland and Wales.
In Scotland, the Commission shares its human rights remit with the Scottish Human
Rights Commission (SHRC). We cover human rights issues arising from matters
reserved to the Westminster Parliament, while the SHRC normally covers issues
arising from devolved matters. In practice, the two Commissions work in partnership
on many human rights issues. It should be noted that this response covers England
and Wales, but not Scotland.
1.3
The Commission is pleased to have the opportunity of responding to this public
consultation on the human rights of older persons issued by the Office of the High
Commissioner on Human Rights. The UN's growing interest in this issue is to be
welcomed. We are strongly supportive of the steps taken to consider the adequacy of
human rights protection for older persons, in particular establishing by resolution
65/182 the Open Ended Working Group on Ageing to consider the existing
international framework of the human rights of older persons and identify possible
gaps and how best to address them, including by considering, as appropriate, the
feasibility of further instruments and measures.
1
1.4
The Commission was a joint signatory to the statement of the European Group of
NHRIs to the third working session of the Open Ended Working Group in August 2013.
This statement concluded that further action was required to ensure the full protection
of the rights of older persons and urged all states to
'...explore the options of various measures and responses to the situation, including
a new dedicated international instrument, a new special procedure mandate, as well
as a mainstreaming approach to the human rights of older persons throughout
existing mechanisms, policies and programmes.'
1.5
The Commission was also represented at a recent conference on older people's
human rights in Osnabruck, Germany.1 This event brought together participants from
25 countries representing older people’s groups, human rights and development
organisations, together with legal and international experts. The conclusion of the
conference was that the rights of older people should be strengthened globally and
that new international human rights instruments are needed to make the human rights
system more effective in addressing violations of rights and discrimination in old age.
Based on its own evidence and analysis, the Commission agrees with this view.
2.
Information on the main challenges related to promotion and protection of
human rights of older persons at country level
Health care
2.1
One of the main challenges to older people's human rights is in the field of health and
social care. In 2007, the Joint Parliamentary Committee on Human Rights exposed
evidence of human rights abuses of older people in health and social care settings.2
Unfortunately, examples of such abuses have continued to be reported over the past
six years. For example, the Parliamentary and Health Service Ombudsman reported
the cases of ten older people who had suffered pain, indignity and distress while in the
care of the national health service (NHS) - in some cases sufficiently severe to reach
the threshold for a breach of Article 3 of the European Convention on Human Rights
(ECHR).3
2.2
Serious failings in the treatment by Mid-Staffordshire NHS Hospital Trust of frail and
vulnerable patients, including many older people, were exposed in a highly critical
report by the Healthcare Commission in March 2009. To ensure lessons were learned
from these failings, the Secretary of State appointed Robert Francis QC to conduct two
independent inquiries, which reported in February 20104 and February 20135
respectively.
'Strengthening the Rights of Older People Worldwide: Building Greater European Support',
5 - 7 December 2012
1
2
Joint Committee on Human Rights, The Human Rights of Older People In Healthcare, Eighteenth
Report of Session 2006 - 2007
3 Parliamentary and Health Service Ombudsman, 2011, Care and compassion? Report of the Health
Service Ombudsman on ten investigations into NHS care of older people.
4 House of Commons, Independent Inquiry into care provided by Mid-Staffordshire NHS Foundation
Trust January 2005 - March 2009 , published February 2013
5 House of Commons, Report of Mid-Staffordshire NHS Foundation Trust Public Inquiry, February
2013
2
2.3
The report of the first independent inquiry found evidence of bad care, denials of
privacy, dignity and respect and unnecessary suffering experienced by in-patients at
the two hospitals concerned. It is clear that many of their experiences amounted to
human rights abuses. Patients were left in a dirty state, their requests for help to get to
a toilet or use a bedpan were ignored, or they were abandoned on toilets or
commodes. Many experienced difficulties getting help with eating and drinking, or
were provided with inappropriate food for their medical condition. Some patients did
not receive the medicines that they had been prescribed. A significant number
reported poor communication by staff, including insensitivity or a lack of compassion
towards them.
2.4
The second inquiry was set up to consider why the problems identified had not come
to light earlier. It identified serious failings within the NHS system, including a failure to
listen to patients' complaints, to communicate known concerns adequately to others or
to take action to protect patients' safety and wellbeing. The inquiry blamed these
failings on an institutional culture which put business imperatives ahead of the
protection of patients, and proposed the development of a set of 'fundamental
standards' for the NHS. The Commission believes that any such standards should
reflect equality and human rights principles, to protect everyone receiving health care including older people.
2.5
Controversy has also arisen in relation to the NHS's use of the Liverpool Care Pathway
for the Dying Patient (LCP). This pathway covers palliative care options for patients in
the final stages of life and has been developed to help doctors and nurses provide
quality end-of-life care. However, there are claims that older patients admitted to
hospital for emergency treatment have been put on the LCP without ascertaining their
wishes or consulting their families, and without a proper assessment of whether
recovery might still be possible.
Residential care
2.6
Older people in residential care homes also experience challenges to their human
rights. A research report commissioned by the Joseph Rowntree Foundation)6 found
that older people living in residential care had little or no say over their lives, and were
often confused about the options available to them. The majority of stakeholders
thought that ageism and stigma associated with extreme old age and frailty were
prevalent. According to this research, debates about long-term care are dominated by
financial concerns, contributing to a view that older people with high support needs are
commodities rather than consumers with rights.
2.7
An independent commission on social care funding has recommended a new funding
regime for social care.7 The government has responded by indicating a cap on the
individual resources that people should contribute to their care. It has also published a
draft Bill on care and support to take forward reforms.
6
Joseph Rowntree Foundation, 2009, Older people's vision for long-term care (research undertaken
by the Older People's Programme and the Centre for Policy on Ageing)
7 Fairer care funding: the report of the Commission on funding of care and support, July 2011
3
Home care
2.8
Until recently, there had been little attention paid to the experiences of older people
using home care services. Using its formal legal powers, the Commission launched an
inquiry into older people and human rights in home care in November 2010. The
inquiry focused on home care commissioned or provided by local authorities in
England. It set out to find out whether the human rights of older people (ie, those aged
65 or over) needing home care services are adequately promoted and protected.
2.9
The Commission's inquiry first launched a widely publicised ‘call for evidence’, to help
decide how more targeted evidence would be gathered. This initial stage was followed
by focus groups and in-depth interviews with individuals using home care services,
together with an online survey of local authorities and telephone interviews with home
care organisations.
2.10 Evidence from the Inquiry suggested that about half of older people receiving home
care were satisfied with the services, with findings of some good practice by local
authorities and provider organisations. However, there was also evidence of human
rights breaches. Concerns were raised about older people receiving inadequate
support with food and drink, sometimes leading to severe weight loss and dehydration.
Some care workers had an unfounded belief that health and safety restrictions
prevented them from preparing hot meals, leaving clients to heat up their own food in
the microwave.
2.11 Although evidence of intentional physical abuse was relatively unusual, several
instances were reported. There were also examples of older people being neglected
because care workers had been allocated insufficient time to complete everything in
the care plan, often rushing through tasks or leaving them undone because of time
constraints; 15 minute visits were common. Some older people also had concerns
about home care workers addressing them condescendingly or ignoring them when
talking on their mobile phones.
2.12 Some older people reported a lack for respect for personal privacy when intimate tasks
were carried out; this problem was compounded by having a high turnover of care
workers carrying out intimate care. Problems also arose when workers carried out their
tasks in a distracted and rushed way, and the impact of these pressures was greater
for those with dementia.
2.13 Older people also commented on a lack of respect for their personal autonomy; for
example, having no control over the timing of their visits, in some cases forcing them
to stay in bed for long periods of time in soiled incontinence pads. In one case, an
older woman was put to bed by care workers at 5pm and had to wait until 10am the
next day before she had help to get up. Only rarely were older people genuinely
involved in assessing their own home care needs.
2.14 In contrast to care packages for younger disabled adults, older people’s care rarely
includes support for social activities. The inquiry unveiled a pervasive sense of
isolation and loneliness among older people, especially those living alone.
Organisations working with older people saw social isolation as having an impact on
mental and physical wellbeing and personal confidence.
4
2.15 The report of the Inquiry8 identified inter-linked factors that contributed to these risks to
older people's human rights: the impact of age discrimination, the lack of investment in
care workers, barriers to service users making complaints, and gaps in the legal and
regulatory framework (see para 3.13 below). The Inquiry report made a number of
recommendations: some directed at the government, others directed at local
authorities, the Care Quality Commission (the statutory regulator for the sector) and
home care providers. The Commission is now undertaking follow-up work to check
progress against these recommendations.
2.16 In spite of the impact of the Commission's inquiry report, there is evidence that
inadequate progress has been made in the home care sector. Prompted by the
findings of the Inquiry, the Care Quality Commission (CQC) carried out a programme
of themed inspections of 250 home care agencies in England, looking at the quality of
home care for people aged 65 or over. This led to a report published in February
2013.9 Overall, the CQC found most providers were delivering a good service, but a
minority of people are affected by late or missed calls, lack of continuity of care
workers, unsupported staff; poor care planning, and failures of providers to listen to
service users or to their families.
3.
Information on constitutions or legislation explicitly forbidding discrimination
on the basis of old age and on the existence of specific bodies which protect against
age discrimination or are mandated to protect and promote the rights of older
persons.
Anti-discrimination legislation
3.1
Age discrimination in employment and vocational training has been outlawed in Great
Britain since October 2006. The ban extends to direct and indirect discrimination,
harassment and victimisation and was introduced by the Employment Equality (Age)
Regulations 2006 to comply with parts of the European Union Directive 2000/78/EC on
Equal Treatment in Employment (the Regulations are now consolidated into the
Equality Act 2010).
3.2
Article 6(1) 2000/78/EU permits differences of treatment on grounds of age, provided
they are objectively and reasonably justified by a legitimate aim. This is reflected in
domestic legislation, which provides that different treatment because of age may be
lawful if it is proportionate means of achieving a legitimate aim (Section 13(2) Equality
Act 2010).
3.3
Using this Article of the Directive, a number of express exceptions to the age
discrimination ban in employment were introduced by the Age Regulations and are
now contained in Schedule 9 to the Equality Act 2010. Exceptions likely to increase
protection for older workers permit service related benefits (such as pay increments
and holiday entitlements); and redundancy payments broadly weighted in favour of
older workers.
8
Equality and Human Rights Commission, Close to home: older people and human rights in home
care, November 2011
9 Care Quality Commission, Not just a number: review of home care services, February 2013
5
3.4
The Employment Equality (Age) Regulations 2006 contained an exception for a
national default retirement age, allowing employers to impose retirement on
employees aged 65 or over. A legal challenge to this exception was unsuccessful.
However, the publicity around the case contributed to the Government's decision to
bring forward its review of the default retirement age, a policy that had begun to attract
criticism from many quarters. With effect from 6 April 2011, the default retirement age
was abolished. As a result, employers are only able to operate mandatory retirement
ages if their policy can be objectively justified, under Section 13(2) EA 2010.
3.5
On 1st October 2012, new provisions in the Equality Act 2010 came into force,
extending the age discrimination ban to services, public functions, private clubs and
associations.10 It is irrelevant whether a service is provided by the private, public or
voluntary sector, and whether it is for payment or free of charge. These measures are
not underpinned by EU legislation and few other European states have outlawed age
discrimination in these fields.
3.6
As with age discrimination in employment, direct discrimination because of age may be
justified (under Section 13(2) EA 2010) if it is a proportionate means of achieving a
legitimate aim. Some express exceptions also apply.
3.7
One such exception covers to the whole financial services sector, and applies to all
transactions except where the provider carries out an assessment of risk relating to
age. If this is the case, the assessment must be done by reference to ‘relevant’
information ‘from a source on which it is reasonable to rely’. There is extensive
evidence of age discrimination against older people in this sector, particularly in motor
and travel insurance. The exception will not prevent most age-related differential
treatment from continuing, even where there is an unreasonable refusal of services or
disproportionate detriment based on age.
3.8
More positively for older people, there is an exception allowing service providers to
continue offering age based concessions for services generally available to all age
groups. For example, senior citizens can still be offered free or reduced price travel
and discount days at hairdressers, cinemas and stores.
3.9
Other exceptions that might benefit older people include one allowing package
holidays to be restricted to particular age groups, and another that permits minimum
ages for residential mobile home sites. For clubs and associations, there is also an
exception which allows them to offer age-based concessions such as reduced
membership fees for particular age groups.
3.10 There is no express exception for health and social care. This means that
organisations responsible for planning, commissioning or delivering health or social
care services can only treat different age groups in different ways if this can be
objectively justified. Many age-based services currently provided can satisfy this legal
test; for example, winter flu injections for the over 65s.
Human rights
10
NB there is still no protection from age discrimination in housing and premises
6
3.11 The UK has incorporated the rights and freedoms of the ECHR into domestic law
through the Human Rights Act 1998 (HRA). This Act requires all public authorities to
comply with the ECHR when carrying out their powers and duties. The HRA also
requires UK courts to interpret domestic legislation in a way that is compatible with the
ECHR. If this is not possible, then the courts may make a ‘declaration of
incompatibility’ to inform Parliament of the problem, asking it to change the law.
3.12 Under the HRA, victims of human rights breaches can bring a claim to the UK courts,
or defend a claim against them using human rights arguments. Before the HRA came
into effect, an individual claiming that the UK had breached their ECHR rights could
only bring a case to the Strasbourg court.
3.13 HRA obligations also apply to non-state organisations – for example, third sector
organisations and private companies – when they are carrying out ‘public functions’ on
behalf of the state. This is an important provision, given the increasing tendency to
outsource public services, including health and social care, to non-state organisations.
However, the courts have inconsistently interpreted the phrase 'public function',
leading to loopholes in the scope of the HRA. For example, when local authorities
commission home care services from non-state providers, these services almost
certainly operate outside the scope of the HRA. In contrast, Parliament has now made
it clear that private and third sector providers of residential care services
commissioned by the state fall within the scope of the HRA.11 The HRA status of
outsourced NHS services has yet to be clarified by the courts.
The Equality and Human Rights Commission
3.14 The Equality and Human Rights Commission has a unique statutory mandate to
promote equality and work towards the elimination of unlawful discrimination, including
unlawful age discrimination. It has legal powers to support individual cases, carry out
formal assessments and investigations and issue unlawful act notices. The
Commission can apply to be accepted as a third party intervener in strategically
important cases before the courts.
3.15 The Commission is also the statutory regulator of the public sector equality duty. This
duty, consolidated and expanded by the Equality Act 2010, requires public authorities
to have due regard to the need to eliminate unlawful discrimination (including
discrimination because of age), advance equal opportunity (including for particular age
groups) and foster good relations. The Commission can undertake an assessment to
evaluate a public authority's compliance with one or more aspects of the public sector
equality duty, which may lead to a formal notice requiring the authority to comply with
the duty.
3.16 In relation to human rights, the Commission's statutory powers are more limited. As
well as a general power to promote and protect human rights, it can carry out formal
investigations, bring judicial reviews in its own name on human rights matters and
intervene in strategically important cases. One example of the Commission's human
rights work is the formal inquiry into older people and human rights in home care,
which is discussed above.
11
Under Section 145 Health and Social Care Act 2008
7
Older People's Commissioner for Wales
3.17 The role of the Older People's Commissioner for Wales role is to safeguard and
protect that the interests of older people. The Commissioner provides strategic
leadership and acts as an ambassador on older people’s issues, speaking up on their
behalf and providing information and support. She also promotes opportunities for
older people in Wales and the elimination of discrimination against them, as well as
reviewing the adequacy of law and policy and the operation of complaints, advocacy
and whistle blowing procedures.
4.
Information on specific national legislation, national policies, strategies and
plans of action adopted to ensure the equal enjoyment of rights by older persons,
particularly in the areas of prevention and protection against violence and abuse,
social protection, food and housing, employment, legal capacity, access to justice,
health support, long-term and palliative care.
Protection from violence and abuse
4.1
Protection from violence and abuse of adults at risk of harm is the responsibility of
local Adult Safeguarding Boards, which are multi-agency partnerships providing
strategic development of safeguarding policy and practice. There are various pieces
of legislation relating to different aspects of safeguarding. The government's 'No
secrets' guidance deals with safeguarding as a whole, attempting to bring together the
work of all the agencies involved. While this is not legislation, for local authority social
services departments it has the status of 'statutory guidance' under Section 78 Local
Authority Social Services Act 1970.
4.2
Weaknesses and gaps in the adult safeguarding system have been identified by a
number of sources, including the Commission's Inquiry into disability harassment.12
Draft legislation under consideration by Parliament is proposing that Adult
Safeguarding Boards be placed on a statutory footing and that local authorities be
required to make inquiries where they reasonably suspect that an adult with care and
support needs is at risk of abuse or neglect.
4.3
The Commission has made representations supporting the need for local authorities to
have a power of entry when they reasonably believe that somebody is at serious risk
of harm. These included detailed consideration of criteria that should apply in order to
ensure a balance between the need for safeguarding and the right to respect to private
life for the individuals at risk.
Social protection
4.4
A complex package of community care legislation provides social protection and,
where necessary, long-term care for older people. Most residential and home care
services are now commissioned from private and third sector organisations, rather
12
Equality and Human Rights Commission, Hidden in plain sight - inquiry into disability-related
harassment, 2011
8
then being provided by local authorities themselves.13 The social services department
of a local authority retains responsibility for assessing the need for community care
services for any person (regardless of means) who appears to have such a need. A
single assessment process has now been introduced to encourage social care, health
and housing bodies to work together on needs assessments.
4.5
Local authorities may use a telephone service as a first point of contact for community
care assessments. It was reported to the Commission's home care Inquiry that these
services sometimes turn away older people as 'ineligible' before assessing their care
needs. Because of increased financial constraints, many local authorities have
tightened their eligibility criteria; most only provide publicly funded home care to people
with 'critical' or 'substantial' needs.
4.6
Where a person's primary need is for health care, residential or home care services
may be funded by the NHS; otherwise it may be funded by the local authority subject
to means-testing of the individual concerned. Local authorities are encouraged to offer
personal budgets, allowing home care service users to retain choice and control over
the services they need. However, the take-up of personal budgets is lower for older
people than most other groups, partly because they are not given sufficient support to
manage the responsibilities involved in being an employer - often for the first time.
Mental capacity
4.7
The Mental Capacity Act 2005 provides a framework to empower and protect people
who may lack capacity to take some decisions for themselves. Its underlying
approach is to ensure that those who lack capacity are empowered to make as many
decisions as possible, with support if necessary, and that any decision taken on their
behalf is taken in their best interests and restricts their rights and freedoms as little as
possible. A Code of Practice supports the legislation and provides guidance to all
those who care for, or make decisions on behalf of, adults who lack capacity.
4.8
The Deprivation of Liberty Safeguards are part of the Mental Capacity Act. They are
designed to protect people in care homes and hospitals from being deprived of their
liberty without formal authorisation. The safeguards also provide for the person
concerned to have a representative; allow a right of challenge to the Court of
Protection against unlawful deprivation of liberty; and allow for regular review and
monitoring of individual cases. In practice, problems have arisen with using the
safeguards, because of uncertainty about what counts as a 'deprivation of liberty' (for
example, in a care home setting) and because of inconsistent approaches to using the
safeguards by different public authorities.
Health support and palliative care
4.9
Health support and palliative care for older people is generally provided by the NHS
and is free at the point of delivery. Older people are the main users of the NHS,
13
For example, in 1992 only two per cent of publicly funded home care was provided by independent
organisations but by 2009/10, the proportion had risen to 84 per cent: NHS Information Centre, 2011,
Community Care Statistics 2009-10. Social Services Activity Report, England
9
representing 60 per cent of all hospital admissions. Some major concerns about NHS
treatment of older people were noted in paragraphs 2.1 to 2.5 above. Various
initiatives by the Department of Health have sought to introduce a human rights culture
into services, including the 'Dignity in Care' campaign, which invites commissioners,
providers and services users to become 'dignity champions'.
4.10 The NHS is currently undergoing substantial structural changes, which will hand over
decision-making about local services to local Clinical Commissioning Groups overseen
by the NHS Commissioning Board. A new body, Public Health England, will set
national outcomes for public health. Local health and wellbeing boards will be set up in
every local authority area and will be able to influence commissioning decisions in
health, public health and social care. It is to be hoped that these new structures can
deliver better health outcomes for older people and avoid any recurrence of the type of
failings identified above.
Access to justice
4.11 Reforms to the legal aid system in England and Wales will exclude many areas of civil
law from the scope of legal aid. The Commission has concluded that these changes
may deprive some people from access to a fair hearing as required by Article 6 ECHR,
and that policies aimed at mitigating their impact – in particular, the exceptional
funding scheme – may not be sufficient to ensure that everyone has access to
justice.14
4.12 The Commission has also raised concerns about the introduction of a mandatory
telephone advice gateway, initially for three areas of law. This could have a negative
impact on clients with learning or cognitive impairments, or poorer mental health
(including older people with hearing impairments or dementia). Research indicates
that giving up and doing nothing when faced by civil law problems becomes
increasingly common with age.15
Equality and Human Rights Commission
March 2013
14
Equality and Human Rights Commission, Human Rights Review (chapter on Article 6), 2012.
Age Concern England, Civil and social justice needs in later life, based on secondary analysis
commissioned from Legal Services Research Centre (2007)
15
10