Response of the Equality and Human Rights
Commission to the Consultation:
Consultation details
Title:
Source of consultation:
Date:
Introducing Fundamental Standards:
Consultation on proposals to change CQC
registration regulations
Department of Health
January 2014
For more information please contact
Name of EHRC contact providing response and their office address:
Tim Gunning
Telephone number:
0207 832 7818
Mobile number:
Email address:
tim.gunning@equalityhumanrights.com
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 20061 to
encourage and support the development of a society in which:
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 law2.
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’.3 This includes the European Convention on Human Rights,
incorporated in the Human Rights Act 1998.
1
Equality Act 2006, section 3.
Equality Act 2006, section 11.
3
Principles relating to the Status of National Institutions (The Paris Principles), Adopted by General Assembly
resolution 48/134 of 20 December 1993.
2
Find out more about the Commission’s work at:
www.equalityhumanrights.com
Consultation response
1. The Commission’s response focuses on how the Fundamental
Standards should support and protect the human rights of health
and social care users. We have not structured our response
around the consultation questions because many of these
questions fall outside our remit.
2. The Commission's inquiry into older people and human rights in
home care4 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
when intimate tasks were carried out, a problem compounded by
having a high turnover of care workers carrying out intimate care.
4
Close to Home: An inquiry into older people and human rights in home care, Equality and Human
Rights Commission, 2011
 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.
3. The abuse and neglect of patients at Winterbourne View Hospital5
and Mid- Staffordshire Hospital6 provides further evidence of
contraventions of the Human Rights Act 1998 in care settings.
4. The Commission believes the proposed Fundamental Standards
have the potential to lever better protection and promotion of
equality and human rights for health and social care service users.
5. The draft regulations make welcome reference to the duties of
providers under the Equality Act 2010 in relation to appropriate
provision of care and treatment including the duty to make
reasonable adjustments and the requirement to have due regard to
the protected characteristics of service users.
6. We note that the draft Regulations make reference to the human
rights principles of dignity, respect, privacy and autonomy of
service users. However, in the Commission’s analysis, the draft
regulations would better protect the human rights of service users
if they made explicit reference to the relevance of the Human
Rights Act 1998 to health and social care services. Doing so
would highlight to providers, their staff and service users that
health and social care provision should protect the human rights of
service users. We note, for example, that the NHS constitution
contains several references to the need to respect service users’
human rights and the relevance of human rights legislation.7
7. Our engagement with the social care sector, particularly through
our home care inquiry and relevant follow up work, suggests that
providers and their staff being aware that poor standards of care
provision can contravene service users’ human rights can motivate
them to reflect on their practice and improve it. By looking through
a human rights lens at the experiences of service users, providers
5
South Gloucestershire Safeguarding Adults Board: Winterbourne View a serious case review by Margaret
Flynn, CPEA Ltd. 2012.
6
Independent Inquiry into care provided by Mid-Staffordshire NHS Foundation Trust January 2005 - March
2009. The Stationary Office, 2010
7
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/170656/NHS_Constitution.pdf
and staff can not only ensure basic fundamental standards are met
but achieve excellence in provision and outcomes for service
users.
8. The British Institute of Human Rights publication8 'The difference it
makes' includes examples of how health and social care providers
have consciously adopted a human rights approach to the benefit
of service users and organisational culture.
9. Also, as reported in our evidence report following the
Commission's inquiry into the human rights of older people in
home care, the Scottish Human Rights Commission’s 'Care about
rights' training and awareness programme successfully demystified
human rights so that care providers and workers made better
informed and accountable decisions and older people were
empowered to understand and claim their human rights. This
initiative was particularly effective in helping care workers use a
human rights approach when balancing risks in decision making,
including resolving conflict between the needs of different service
users9.
10.
The Commission suggests that the most appropriate place to
include a reference to the need to protect service user’s human
rights would be under Regulation 4, which sets out fundamental
standards relating to person-centred care. For example, after sub
section (3) (b) of Regulation 4 could be inserted a new requirement
that states: ‘designing and providing care or treatment with a view
to ensuring the human rights of service users are protected;’.
Human Rights Act 1998: applicability to social care.
11.
Because of developments in case law relating to the Human
Rights Act,10 there is currently a lack of legal clarity as to whether
private or third sector home care providers are considered to be
performing a ‘public function’ within the meaning of the HRA when
delivering care that is publically funded or arranged. The
8
www.bihr.org.uk/documents/guides/the-difference-it-makes-putting-human-rights-the-heart-of-health-andsocial-care
9
http://www.scottishhumanrights.com/careaboutrights
10
YL v Birmingham City Council [2007] UKHL 27
Commission’s home care inquiry recommended that the definition
of ‘public function’ under the HRA should be extended to include
all home care that is publically arranged. However, the
Government has taken the view that all social care providers
should consider themselves to be already covered by the HRA.
12.
The Commission hopes that Parliament will use the
opportunity presented by the final stages of the Care Bill to clarify
beyond doubt that all regulated social care that is publically funded
or publically arranged falls within the scope of the Human Rights
Act 1998.