Response of the Equality and Human Rights
Commission to the Consultation:
Consultation details
Title:
Source of consultation:
Date:
Human rights approach for our regulation of
health and social care services.
Care Quality Commission
May 2014
For more information please contact
Name of EHRC contact providing response and their office address:
Tim Gunning
Telephone number:
02078327818
Mobile number:
Email address:
tim.gunning@equalityhumanrights.com
Introduction
The Commission welcomes CQC’s commitment to embedding human
rights into its inspection approach as doing so should help to protect
people from human rights contraventions and support excellence in
health and social care provision.
CQC and the Commission have had a Memorandum of Understanding
since 2010 which has been the framework for a number of positive
partnership initiatives on equality and human rights including human
rights guidance and training for CQC inspectors.
The Commission has a particular interest in health and social care as
our evidence indicates that the human rights of service users have
sometimes been contravened.
Our inquiry into older people and human rights in home care1 found
evidence of serious, systematic threats to the dignity, autonomy and
safety of older people using home care services. Evidence of human
rights breaches from the inquiry included:
 Some older people receiving inadequate support with food and
drink, leading to severe weight loss and dehydration.
 Although evidence of intentional physical abuse was relatively
unusual, several instances were reported.
 Some older people were neglected because care workers had
been allocated insufficient time to complete everything in the care
plan; it was common for care visits to be scheduled for only 15
minutes.
 Problems also arose when workers under pressure carried out
their tasks in a distracted and rushed way, with a greater impact
for those with dementia.
 Some older people reported a lack for respect for personal privacy
1
Close to Home: An inquiry into older people and human rights in home care, Equality and Human
Rights Commission, 2011
when intimate tasks were carried out, a problem compounded by
having a high turnover of care workers carrying out intimate care.
 Some older people had no control over the timing of their visits,
with examples of individuals having to stay in bed for long periods
of time in soiled incontinence pads.
The abuse and neglect of patients at Winterbourne View Hospital2 and
Mid- Staffordshire Hospital3 provides further evidence of contraventions
of the Human Rights Act 1998 in care settings.
Response to consultation questions:
1: Do you think our strategy for integrating human rights into our
regulation, as shown in Figure 1 is the right approach? Are any
changes needed?
The Commission’s analysis is that CQC’s strategy for integrating human
rights into regulation of health and social care services would be more
effective in protecting and promoting human rights if it explicitly
connected the Fundamental Standards regulations, associated guidance
and five key questions to relevant articles of the European Convention
on Human Rights (Convention articles).
We recommend that the ‘human rights principles’ (‘fairness; respect;
equality; dignity; autonomy: right to life and staff rights/empowerment)
used by CQC throughout the assessment framework and provider
handbooks are replaced with, or specifically reference, relevant
Convention articles. This would ensure that CQC inspectors, Experts by
Experience, providers, service users and the general public are aware of
potential Human Rights Act contraventions in health and social care
provision. This approach, which explicitly highlights the human rights of
service users and staff, is also likely to have an empowering effect.
2: Do you think we have selected the right ‘set’ of human rights
principles?
2
South Gloucestershire Safeguarding Adults Board: Winterbourne View a serious case review by
Margaret Flynn, CPEA Ltd. 2012.
3 Independent Inquiry into care provided by Mid-Staffordshire NHS Foundation Trust January 2005 March 2009. The Stationary Office, 2010
As discussed in our response to question 1, we recommend that the
human rights principles be replaced with, or specifically reference,
relevant Convention articles throughout the assessment framework and
provider handbooks as this would aid understanding of potential Human
Rights Act contraventions and help to empower service users and staff.
3: Do you think the definitions of each human rights principle is the
right one? Are any changes needed?
See response to questions 1 and 2.
4. Are any changes needed to our human rights topics list?
We believe the key questions would be more effective in protecting
human rights if they specifically referenced relevant Convention articles
and linked appropriate topics to each article.
5. Do you have any comments on how we propose to:
• Identify risk to human rights?
• Inspect for human rights?
• Provide learning and development on human rights for our
registration and inspection teams?
Are there other ways that we should apply our human rights
approach?
The Commission welcomes CQC’s proposal to adapt its human rights
approach to each type of service. Whilst there are commonalities in the
human rights risks for people using different service types, there are also
differences that require tailoring of inspection methodology to effectively
identify good and bad practice on human rights in each specific type of
service.
We welcome CQC’s commitment to build the confidence of inspection
teams on human rights through learning and development.
The consultation document states that human rights principles have
been used in the inspection framework rather than Convention articles to
assist members of inspection teams who are not full-time inspectors to
apply the human rights approach to inspection. We believe that the
Human Rights Act can be explained in easy to understand terms so that
all members of inspection teams can apply them to inspections.
The Commission recommends that CQC develops training for inspection
teams similar to the ‘Care about rights’ training and awareness
programme developed by the Scottish Human Rights Commission. This
training successfully demystified human rights so that care providers and
workers were equipped to better protect and promote human rights and
service users were empowered to understand and claim their human
rights4.
6. Are our principles for applying our human rights approach, laid
out in sections 5 and 6, the right ones?
As discussed above, whilst the Commission welcomes CQC’s principle
of embedding human rights into the new regulatory approach our
analysis is that using Convention articles rather than human rights
principles would strengthen the inspection framework’s ability to protect
and promote human rights and empower service users and staff.
We applaud CQC’s principle of putting people who use services at the
heart of its work. This person-centred approach is fundamental to
protecting and promoting the human rights of people using services.
We strongly support the principal that everyone in inspection teams will
be provided with tailored advice and support and able to draw upon the
expertise of human rights specialists within CQC. This should also help
to ensure that a diverse and representative range of experts by
experience are able to inspect services effectively.
We welcome CQC’s commitment to continuous improvement on human
rights observance as the new inspection model develops and look
forward to continuing collaboration with CQC on this. We will offer what
assistance we can in supporting CQC to innovate, implement and
evaluate human rights promotion and protection through the new
inspection model over the coming years.
4
http://www.scottishhumanrights.com/careaboutrights
The Commission applauds CQC’s intention to provide analysis of
equality and human rights issues in the State of Care Report. This
should help to identify trends and enable CQC, government and health
and social care organisations to target improvement measures where
needed.
7. How could CQC lever improvement in equality and human rights
for people using health and social care – beyond the improvement
we will make through applying our human rights approach to the
regulation of each health or social care service?
The Commission recommends that CQC advocates that providers use a
human rights framework in service delivery, training, development and
appraisal of their staff.
8. How should we evaluate the success of our human rights
approach?
CQC could judge how effectively the human rights approach to
regulation is being incorporated into inspections by examining inspection
reports to see if inspection teams are framing their assessment of
services around human rights.
References to the protection and promotion of human rights by providers
in self assessments and during inspection visits will indicate that
providers are examining the care they provide within a human rights
framework.
Linking the five key questions and related topics to relevant Convention
articles will help to support inspection teams to examine services
through a human rights lens and will help facilitate evaluation of the
effectiveness of CQC’s human rights approach to regulation.
We would also be happy to discuss the EHRC’s Human Rights
Measurement Framework with the CQC5. The framework provides a new
set of indicators that bring together information and evidence for
analysing and assessing human rights in Britain. The methodology
adopted by the framework may be of value for the CQC when evaluating
the success of its human rights approach.
5
http://www.equalityhumanrights.com/about-us/our-work/key-projects/our-measurement-framework
9. Would you like to be involved in the development of our human
rights approach in the future? How should we involve people who
use services, the public, providers and other stakeholders in the
development of our human rights approach?
The Commission looks forward to continuing collaborative work with
CQC to embed equality and human rights into health and social care
regulation and provision.
The involvement of a broad range of people representing all Equality Act
protected characteristics in the development of CQC’s human rights
approach will help to ensure the diversity of needs of service users are
taken into account. Effective involvement will require reasonable
adjustments to be made to enable representation from seldom heard
groups of people. The Commission has produced guidance on
engagement that CQC will find helpful to support engagement with a
diverse range of people6.
About the Equality and Human Rights Commission
1. The Equality and Human Rights Commission is a statutory body,
established under the Equality Act 2006. Its statutory duties
include promoting equality of opportunity, working towards the
elimination of unlawful discrimination, and promoting awareness,
understanding and protection of human rights.
2. The Commission enforces equality legislation on age, disability,
gender reassignment, marriage and civil partnership, pregnancy
and maternity, race, religion or belief, sex, sexual orientation, and
encourages compliance with the Human Rights Act. It gives advice
and guidance to businesses, the voluntary and public sectors, and
to individuals.
3. We have a statutory duty under the Equality Act 20067 to
encourage and support the development of a society in which:
6
Engagement and the equality duty: A guide for public authorities , Revised 2 nd edition, Equality
and Human Rights Commission, December 2011
7
Equality Act 2006, section 3.
people's ability to achieve their potential is not limited by prejudice
or discrimination, there is respect for and protection of each
individual's human rights, there is respect for the dignity and worth
of each individual, each individual has an equal opportunity to
participate in society, and there is mutual respect between groups
based on understanding and valuing of diversity and on shared
respect for equality and human rights.
4. We are also responsible for monitoring the effectiveness of the
equality and human rights enactments and advising on the
effectiveness of enactments, as well as the likely effect of a
proposed change of law8.
5. As a UN accredited National Human Rights Institution, the
Commission is required to ‘promote and ensure the harmonisation
of national legislation, regulations and practices with the
international human rights instruments to which the State is a
party’.9 This includes the European Convention on Human Rights,
incorporated in the Human Rights Act 1998.
Find out more about the Commission’s work at:
www.equalityhumanrights.com
8
Equality Act 2006, section 11.
Principles relating to the Status of National Institutions (The Paris Principles), Adopted by General
Assembly resolution 48/134 of 20 December 1993.
9