Helen Walden, Communications & Public Affairs Officer at the British Institute of Human Rights, (BIHR),explores how upcoming reforms — from the Mental Health Bill to equality law and Special Educational Needs and Disabilities (SEND) changes — could reshape inclusion and rights in social care, and what this means for providers, staff and the people they support.
With Parliament back in session after recess, we’re looking out for some key changes that will impact the human rights of people across the UK – as well as the duties of the people that uphold them. The Human Rights Act imposes a duty on everyone delivering a public function to respect, protect and fulfil human rights across all their actions. But there is no set definition of what constitutes a “public function” – particularly when services are outsourced.
This issue was at the heart of Sammut v Next Steps, a recent court case in which a judge found that an independent care home contracted under the Mental Health Act was not delivering a public function and so a resident’s human rights were not protected in the way they would be in an NHS facility, or even an independent care home contracted under the Care Act. Not only does this finding risk creating a two-tier system of rights protections, it is at odds with the fundamental principle of universality underpinning human rights law.
BIHR have been working with the National Care Forum to support an amendment to the Mental Health Bill (Clause 52) to address this issue and make it clear registered providers have duties under the Human Rights Act when delivering aftercare under the Mental Health Act; inpatient mental health care arranged or paid for by an NHS body; or Local Authority-arranged community care under the Mental Health Care and Treatment (Scotland) Act.
We have seen widespread support for this from frontline staff. Put simply, as one care provider told us, “you can absolutely keep people safe and still protect their human rights – needing additional support and restrictions doesn’t diminish your rights as a human being.”
The same message is coming from social workers, medical professionals, supporters and residents. It is the message emphasised by the UK Supreme Court in the famous Cheshire West case: “it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings.”
The message is that human rights belong to all of us equally, and it is when we are in the most vulnerable situations that responsibility is highest on duty-bearers to ensure they are protected. This protection starts with the law, as with the Mental Health Bill – and as Parliament resumes, we’re watching for reforms across multiple areas.
Alongside the Mental Health Bill, the UK Government has recently concluded its call for evidence on equality law, to inform the Equality (Race and Disability) Bill expected later this year. This is likely to have direct implications for social care practice; the call for evidence asked about the implementation of the Public Sector Equality Duty and commencement of the socio-economic duty.
We are also expecting a White Paper on reforms to special educational needs and disabilities services. While it’s not yet clear what these will entail, a reported £760 million has been set aside to bring them into action, signalling the scale of reform expected.
Changing the law, however, is only the first step. Much human rights work takes place in the everyday actions of people providing vital public services. The Human Rights Act is, to quote a participant in one of our workshops, “not just something in a dusty book” but a toolkit care providers, commissioners and practitioners can use to ensure services are built on a foundation of dignity, equality and inclusion.
