Table of Contents
Introduction to the Human Rights Act
Article 2 Right to life
Article 3 Prohibition of torture
Article 4 Prohibition on Slavery and Forced Labour
Article 5 Deprivation of liberty
Article 6 The right to a fair trial
Article 7 Right not to be punished for something that wasn’t against the law
Article 8 The right to respect for private and family life, home and correspondence
Interference
Article 9 Freedom of thought
Article 10 Freedom of expression
Article 11 Freedom of peaceful assembly
Article 12 Right to marry and found a family
Article 14 Right to enjoy the freedoms of the Act
The Protocols of the Human Rights Act
Article 1 of Protocol 1 - Protection of Property
Article 2 of Protocol 1 - Right to Education
Article 3 of Protocol 1 - Right to free elections
Article 1 of Protocol 13 - Abolition of the death penalty
The following appeared as articles in Kevren, the staff newsletter for Cornwall Council’s Adult Care, Health and Wellbeing directorate, between July 2013 and April 2014. They were written by Tyler Bennetts, Staff Development Officer, Social Care, Learning and Development, Cornwall Council.
Introduction to the Human Rights Act
The Human Rights Act is probably one of the most controversial pieces of legislation that we come across at the moment. It is often challenged and criticised and it makes very little positive news.
What might be useful is to examine where this legislation came from initially: In the late 40’s it was agreed that in order to prevent a recurrence of the atrocities committed by Nazi Germany against its own citizens, protection should be given to citizens from the state. It was realised that any government could, at some time in the future, commit similar acts against its own citizens, and this needed to be prevented. There was also a realization that government power ought to be limited, not expanded.
From these discussions and agreements, the ‘Universal Declaration of Human Rights’ was born. It was signed by every nation existing at the time, the notable exception being the United States.
In Europe, the declaration was taken further and a Council of Europe was set up to establish and maintain a legal basis for human rights, based in Strasbourg. The UK recognised this court at the time, but it was not until 1998 that we started to ratify the legislation, and by 2000 it was placed within the legislative framework of the UK.
Although law, it rests strongly on principles that were set out within the Universal Declaration of Human Rights. It was about fairness and looking after the needs of those in society who might struggle to defend themselves from a powerful state machine. Most legislation written since bases its foundation on human rights, for instance the Mental Capacity Act and the Equalities Act.
Over the coming few months, we will be looking in detail at the Human Rights Act, and the implications for those of us who work in the health and social care sector. It has an effect for all of us, either as deliverers of care or as citizens whose rights need to be upheld.
All the articles will be collected on the intranet, as with the equality and diversity articles. Search for ‘human rights’.
There are 16 Articles in the Human Rights Act (HRA).
There is no Article 1 or 13 and the Protocols are later additions to the act. The articles are loosely taken from the Universal Declaration of Human Rights which we looked at previously. The Articles are laid out in ascending order with what are seen as the most important first (except the protocols, being later additions are in no particular order). However what can also be seen is that serious breaches are required in order to trigger a response in law, for instance in Article 3 an individual has to come to serious harm before a breach is accepted.
Article 2: Right to life
Article 3: Prohibition of torture
Article 4: Prohibition of slavery and forced labour
Article 5: Right to liberty and security
Article 6: Right to a fair trial
Article 7: No punishment without law
Article 8: Right to respect for private and family life
Article 9: Freedom of thought, conscience and religion
Article 10: Freedom of expression
Article 11: Freedom of assembly and association
Article 12: Right to marry
Article 14: Prohibition of discrimination
Article 1 of Protocol 1: Protection of property
Article 2 of Protocol 1: Right to education
Article 3 of Protocol 1: Right to free elections
Article 1 of Protocol 13: Abolition of the death penalty
Generally there are three types of rights
- Absolute Rights, cannot be removed by anyone,
(except in very specific and rare circumstances). - Limited Rights, usually limited by a legal framework, which also has to consider appeals etc. (Article 5 Right to Liberty is a good example, think of someone sentenced to imprisonment).
- Qualified Rights, these are rights that are held in balance with others (the community or the state being the most common).
The Human Rights Act means all public authorities must ensure that everything they do is compatible with Convention rights unless an Act of Parliament makes that impossible.
One of the main aims of the Human Rights Act is that, over time, a shared understanding of what is fundamentally right and wrong will lead to people having more confidence in key state bodies and that this will encourage more openness and participation in democracy. Shared, basic values in the Human Rights Act will help to promote a greater unity and fairness in our society. The Act has been very widely publicised and we expect that most people in the country now know something about it, even if some of that information comes from mischievous sources which portray the Act in an undeservedly negative light.
Article 2 Right to life
Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which the penalty is provided by law.
Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary
- in defence of any person from unlawful violence
- in order to effect a lawful arrest or to prevent the escape of a person lawfully detained
- in action lawfully taken for the purpose of quelling a riot or insurrection
There is no Article 1 so we start with Article 2, right to life.
Article 2 is generally considered as an absolute right. It is never OK to take someone’s life, and because the rights are in a hierarchical order, it’s the most important under this legislation.
Secondly it’s covered by an Act of Parliament which means that at the moment, if anyone asks for the right to assist someone to end their life, a judge, no matter how senior, will not be able to grant their request.
The exceptions are very small: a law enforcement officer may in self-defence take another’s life, but their or another person’s life must be at risk. What seems to be the message there is that they are sworn to protect life and if an innocent party is at immediate and serious risk they can act to defend that life.
The following quote is from the Equality and Human Rights Commission (EHRC):
“Similarly, public authorities should consider your right to life when making decisions that might put you in danger or which affect your life expectancy.”
Example
“A social worker from the domestic violence team at a local authority used human rights arguments to secure new accommodation for a woman and her family at risk of serious harm from a violent ex-partner. She had received training on the local authority’s obligation to protect the human rights of the woman and her family including their right to life and their right not to be treated in an inhuman or degrading way.”
(Example provided by the British Institute of Human Rights)
In the above case Article 3 is mentioned, but again it is Article 2 that is the most relevant here as it sits further up the hierarchy. The next quote (EHRC) shows there are limits to the state’s responsibility:
“The positive obligation on the state to protect a person’s life is not absolute. For example, limited resources can be taken into account. This means the state is not required to provide life-saving drugs to everyone in all circumstances.”
But this does not mean that the state can withdraw treatment as they please:
In March 2006, the High Court in London ruled against a hospital’s bid to turn off the ventilator that kept the child, known as Baby MB, alive. The 19-month-old baby has the genetic condition spinal muscular atrophy, which leads to almost total paralysis. The parents of the child fought for his right to life, despite claims from medics that the invasive ventilation would cause an ‘intolerable life’.
The principle is that the right to life is not to be taken lightly. The state (arguably) the most powerful part of our society must respect the individual rights of its citizens or face serious consequences.
Article 3Prohibition of torture
No one shall be subject to torture of to inhuman or degrading treatment or punishment
Article 3 is also an absolute right. This means that no-one has the right to interfere with it and the consequences are serious.
This article though needs to be split into two parts, first of all is the torture element, this in order to be classified as torture has to be deliberate and severe as we mentioned before the articles are hierarchical, so to reach the threshold it needs to be something quite substantial. Someone needs to have set out to torture another person
The second part is that of inhumane and degrading treatment or punishment, this does not, in order to qualify, have to be deliberate. This is a very important distinction: the breach may well be unintentional or even accidental, but would still be considered a breach. The European Court of Human Rights has ruled that inhuman or degrading treatment or punishment has to be very serious to be in breach of Article 3.
Case example
Elaine McDonald, 67, took her case against the Royal Borough of Kensington and Chelsea to the highest court in the land after she lost a legal challenge at the Court of Appeal in London last October.
McDonald, who uses a wheelchair after a stroke in 1999, was told by her council that she must wear incontinence pads at night in order to save £22,000 paying for a carer.
McDonald, a former principal ballerina with Scottish Ballet, said she was not incontinent, but had been left with a small and neurogenic bladder which meant she had to urinate on average three times a night. She had two serious falls while attempting to get on a commode on her own; one resulting in a broken hip and a prolonged hospital stay during which she contracted both CDiff and MRSA.
The Supreme Court dismissed the appeal by a majority of four to one. They ruled that Royal Borough of Kensington and Chelsea had complied with Fair Access to Care Services guidance. The court also rejected claims that McDonald's human rights had been breached, saying that the council had treated her with "dignity and autonomy" by allowing her to choose details of her care package.
The court agreed with the council, which had maintained that wearing incontinence pads would allow McDonald more privacy and reduce the risk of further falls. It also maintained that the Royal Borough had a duty to look after its finances and protect the interests of other service users.
Article 4 Prohibition on Slavery and Forced Labour
No one shall be held in slavery or servitude.
No one shall be required to perform forced or compulsory labour.
This is yet again an absolute right, but the Act sets out in advance some exceptions.
These are to do with military service, certain exceptional civic duties (emergency situations) and work whilst in prison. These are quite specific and laid out within the Act. We might think that, working within health & social care, we might not see too much of slavery and forced labour, however look at the following cases, this is not an isolated situation by any means.
Case study #1
At Southwark Crown Court recently, a jury convicted an employer of holding a vulnerable young woman in servitude. Rebecca Balira had brought Methodia Mathias from Tanzania to the UK and was found guilty of forcing her to work as a slave for six months, from dawn until midnight, seven days a week.
Methodia was held in unbearable conditions. Her passport was confiscated and she was forced to share a bed with one of her employer’s children. She was prevented from contacting her family and friends and subjected to vicious assaults in which she was punched and slapped. Methodia was never paid a penny and never given a day off.
Part of this young woman’s ‘duties’ were to look after the family’s children in a caring role. It’s entirely possible that someone could encounter something similar whilst working in the community.
We could also encounter situations where individuals force someone who is vulnerable to work for their benefit, similar to the situation below.
Case study #2
Michael Gilbert led a troubled life. He had been in and out of care as a teenager. Described as vulnerable, he was someone who was easily led a quiet boy and short on confidence. As a teenager, he ended up in the Brambles Children’s Home in Luton, where he met James Watt and Natasha Oldfield.
The pair have now been convicted of his murder, along with Nicola Roberts. Three others involved in the case at Luton Crown Court were guilty of familial homicide.
Mr Gilbert was unemployed and had nowhere to stay. In 2002, he moved in with the Watts family in Yeovil Road. James Watt then heard of an allegation concerning Mr Gilbert’s past, and began beating him, almost daily.
Mr Gilbert escaped and spent time on the street, but he was found by the Watts brothers and made to go back to Yeovil Road. The violence became increasingly serious and humiliating. He was attacked with a knife and an air gun. He tried to escape, but was always caught.
James Watt was described in court as a control freak who was obsessed with finding Mr Gilbert. He used his national insurance number to impersonate him, ringing up the benefits office to find out where he had been signing on.
Mr Gilbert started a new life in Blackburn, but they tracked him down again, kidnapping him from the job centre and driving him back to Luton. Eventually Mr Gilbert was murdered and beheaded, his body found in a local lake.
If the signs that were evident had been picked up, regarding Michael’s situation, he might not have died. However the situation he was kept in while alive was a clear breach of Article 4 of the Human Rights Act
Article 5 Deprivation of liberty
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.
Article 5 is a limited right (by law). What constitutes a deprivation of liberty will depend on the circumstances. Obvious cases are absolute deprivations (such as imprisonment or forced detention). Article 5 is not concerned with mere restrictions on liberty of movement. The difference between restrictions on liberty and deprivation of liberty is one of degree or intensity and depends on the type of measure imposed, its duration and effects, and how it is implemented.
A person can only be lawfully deprived of their liberty when this is done in accordance with law, some examples of which are below.
- detention following court conviction;
- arrest or detention for failing to observe a lawful court order or to fulfil a legal obligation;
- arrest or detention on remand
- detention which is lawful, necessary and proportionate to prevent, as a matter of last resort, the spread of infectious diseases, lawful detention on mental health grounds or other like grounds.
Deprivation of Liberty safeguards
The Mental Capacity Act Deprivation of Liberty safeguards were introduced into the Mental Capacity Act 2005 through the Mental Health Act 2007 The MCA DOLs apply to anyone:
- aged 18 and over
- who suffers from a mental disorder or disability of the mind – such as dementia or a profound learning disability
- who lacks the capacity to give informed consent to the arrangements made for their care and / or treatment and
- for whom deprivation of liberty (within the meaning of Article 5 of the ECHR) is considered, after an independent assessment, to be necessary in their best interests to protect them from harm.
The safeguards cover patients in hospitals, and people in care homes registered under the Care Standards Act 2000, whether placed under public or private arrangements.
Social Care applications