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If we hear that an older person has had their care package reduced (for example from three home visits per day, to just two,) we may feel it unjust and, in the case of our own loved ones, very angry. Whatever the reason for the reduction (most often financial) we feel this is just not right. But is it actually, as some may say, an ‘abuse of human rights’?
The Human Rights Act came into force in the UK on 2 October 2000. As to whether an unwanted reduction in health or social care is an abuse; this is far from straightforward. For example, in respect of the two articles of human rights legislation that apply to this situation, Article 2 (Right to Life) is “absolute” i.e. can’t be limited or restricted, whereas Article 8 (right to respect for private and family life, home and correspondence) can be qualified to protect the rights or interests of others.
So far example, the right to life might include a duty for public authorities to consider decisions which might affect someone’s life expectancy or put their life in danger. Although the right to life is absolute, what if there are legitimate resource issues which affect their ability to provide the care an older person needs, and therefore impact another person’s human rights? Careful consideration will therefore need to be given to the point at which an individual’s care package has been reduced so much that their life expectancy is affected, or their life may be in danger.
Similarly, the right to respect private and family life could include a right to participate in society, or to retain dignity by not being left in soiled underwear. Again, a care provider may argue that they do not need to take actions which may have a negative impact on another person’s rights (i.e. by making sure adequate resources are available to others), but there’s a danger that this is too often used as a get-out clause for failing to provide appropriate care and support. It’s important to note that restrictions to these rights are only justified where the authority can show that its action is lawful, necessary and proportionate.
What is important to remember is that if someone feels that there has been an abuse of someone’s human rights, then the relevant public authority has a legal duty to investigate. (public authority would include the NHS, social work and all local and central government departments.) Thus if an older person’s care is being funded by the local authority, even if they are residing in a private residence, then the care providers are also bound by the Human Rights legalisation, and a breach of their human rights would have to be investigated. However, at the moment, if the care is privately funded then the Human Rights legislation may not apply.
The advice that Action on Elder Abuse Scotland gives to someone in the situation described above is to always contact the team responsible for the service (often social work) to get clarity on the reason for the change. Is the reason given for the change justified? If the answer is not satisfactory, then ask to be referred to the manager of the relevant team. If this is still not satisfactory then the local authority will have a complaints procedure which can be followed. Failing satisfaction from that route, contact the Scottish Public Services Ombudsman. There are several (quicker and cheaper) avenues to explore before legal action might be considered. If the legal route is to be pursued, the full implications (in terms of cost and time) of this action will need to be carefully taken into account.
Action on Elder Abuse Scotland are happy to give support and advice to anyone in this position, or anyone concerned about any abuse or neglect of an older person
Our helpline (080 8808 8141) is available Monday to Friday 9-5 for confidential advice and support.
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