How to use your rights to help you

We can use our rights to help us have our voice heard if we think we are being treated unfairly.

Sometimes when we try to access services, such as social care, or specialist healthcare we can be told that we are not entitled to them. This can be upsetting and frustrating.

Sometimes we have to be eligible to receive certain kinds of support. You can find out more about the criteria for different kinds of eligibility here.

 

Your rights to healthcare

We all have the right to basic healthcare:

The UK is signed up to the International Covenant on Economic, Social and Cultural Rights (ICESCR). This means the UK must protect the right to health as best it possibly can, but recognise that it has limited resources.

The right to health is not specifically protected in UK law. But we do have the Human Rights Act 1998, which obliges all public authorities, including National Health Service (NHS) organisations, to respect the human rights in the European Convention on Human Rights.

How to use your rights:

If you believe you are being denied a service unfairly, you can write or speak to the person or service who made the decision to deny you a service and say:

“I have the right to medical care and necessary social services under Article 25 of the UN declaration of Human Rights. I would like to know on what grounds I have been denied or am not entitled to this service.”

You have the right to ask why you have been denied a service, and the right to a response. If you do not receive a response, or are unhappy with the response, you can submit a complaint to the service. If you are unhappy with the response to your complaint, you can take your case to the Parliamentary and Health Service Ombudsman.

If you believe your human rights have been breached, you may be entitled to take this through a court system. Although Empowerment cannot assist you with this, The Law Society may enable you to find a solicitor who may be able to support you with this.

 

How people have used their rights in court

People who have felt as though their human rights have been breached have been able to submit complaints and go through a court process in order for a judge to decide on their case. The following is a list of key cases n which people have used the court system to argue for their human rights.

 

FC v UK (1999): The applicant complained under Article 8 of the European Convention Of Human Rights that her adoptive father (whom she claims sexually abused her) automatically became her nearest relative under Section 26 of the Mental Health Act (1983), that he consequently had access to personal information about her (including her treatment and whereabouts) and that she was not entitled to apply to have someone else act as her nearest relative.

The case was struck out of the court by way of a friendly settlement on the basis that the government would change the law.

 

Keenan v UK (2001): The applicant’s son had committed suicide while serving a prison sentence. Her Article 2 ECHR complaint was rejected (the authorities responded in a reasonable way to his conduct, placing him in hospital care and under watch when he evinced suicidal tendencies) but her Article 3 ECHR complaint was accepted (lack of effective monitoring and informed psychiatric input into his assessment and treatment, together with the imposition of punishments including seven days’ segregation).

Keenan was awarded £10,000 in damages; £7,000 for the deceased’s suffering, to be held by his estate and £3,000 for his mother’s suffering. She was awarded £21,000 for legal expenses.

 

HL v UK (2004):  This case is commonly known as the Bournewood case, and is a landmark in modern health and social care law.

HL suffered from severe autism and challenging behaviour. After many years in a psychiatric hospital he lived with carers for three years. Then while at a day centre his behaviour deteriorated and he was informally admitted to hospital. He was denied contact with his carers for three months and the intention was to keep him in hospital. Because he was “compliant” it was asserted that he was not deprived of his liberty.

The European Court of Human Rights ruled that he had been deprived of his liberty. He had no access to protections offered by The Mental Health Act 1983 (such as the ability to challenge detention and the restrictions on treatment). The absence of procedural safeguards and access to the court amounted to a breach of Article 5(1) and (4) of the European Convention of Human Rights.

As a result of this case, the government introduced the new Deprivation of Liberty Safeguard (DoLS), which provide extra protection for the human rights of people who lack capacity and find themselves deprived of their liberty. As well as people with learning difficulties and mental health conditions, this could apply to older people in care homes. The Safeguards provide a rigorous process by which health services have to prove that compulsory detention is the best solution for the individual concerned.

Read more about the landmark Bournewood case here.

 

Glass v UK (2004): A mother was against the admission of morphine to her son, which the doctors considered necessary to relieve distress when they considered that he was in the terminal phase of respiratory failure.

The interference on the right to health had not been necessary since the hospital could have made an early application to the courts for an assessment of whether such a medication was in the child’s best interest. This was ruled as a Violation of Article 8 of the European Convention Of Human Rights.

 

Savage v South Essex Partnership NHS Foundation Trust (2010):  Mrs Savage committed suicide on 5 July 2004. At the time of her death, she was detained at Runwell Hospital under Section 3 of the Mental Health Act 1983. She had suffered from mental illness intermittently for many years.

After Mrs Savage’s death, her daughter made a claim on the basis that the hospital owed her, as a victim of the death, a duty under the Human Rights Act 1998. The basis of her claim was that the hospital had failed in its duty to protect her mother under Article 2 of the European Convention on Human Rights, the right to life. She also made a claim in her own right under Article 8 (right to family life).

The High Court ruled that a mental health trust was responsible for the death of a patient and had breached Article 2 of the European Convention on Human Rights as they had the knowledge of a real and immediate risk to the patient’s life from self harm, and failed to do all that could reasonably have been expected of it to avoid or prevent that risk. The patient’s daughter was eligible to bring the claim as a victim under section 7 of the Human Rights Act 1998. She was awarded compensation of £10,000.

 

P & Q v Surrey County Council  and  P v Cheshire West and Chester Council (2014): 

P and Q were sisters with learning disabilities living apart. P (aged 18) lived with a foster mother and never tried to leave the home by herself, but if she had done the foster mother would have restrained her. Q (aged 17) lived in a residential home for learning disabled adults, and sometimes required physical restraint. She showed no wish to go out on her own, and her care needs were met as a result of continuous supervision and control and she was accompanied by staff wherever she went.

P is a male adult with cerebral palsy and Down’s syndrome who requires 24-hour care to meet his needs. P lived in local authority accommodation shared with two other residents. P received 98 hours of one-to-one support each week and was able to go out whenever he wanted with the assistance of his carers. P needed help with daily living, he wore a ‘body suit’ of all-in-one underwear to prevent him from pulling at his continence pads and intervention was sometimes required to deal with his challenging behaviour.

The question was whether the living arrangements amounted to a deprivation of liberty for the purposes of the Mental Capacity Act (2005). At this time, Deprivation of Liberty Safeguard (DoLS) only applied to people in care home and hospital settings. These safeguards are a check to make sure that the deprivation continues to be in the person’s best interests and is not in violation of their right to liberty under Article 5 of the European Convention on Human Rights.

The judgement was that they were deprived of their liberty. The ‘acid test’ for deprivation of liberty is whether the person is under continuous supervision and control and is not free to leave. The following are not relevant: the person’s compliance or lack of objection; the relative normality of the placement (whatever the comparison made); and the reason or purpose behind a particular placement.

The result of this case has meant a significant increase of DoLS applications to the Court of Protection for adults who lack the capacity to consent to their care/placement in settings such as Supported Living in the community.

 

AJ v Local Authority (2015): AJ was an elderly lady who had lived in an annexe of the home of her niece and her husband (‘Mr and Mrs C’). She developed vascular dementia and became increasingly dependent on others, but was reluctant to acknowledge her condition, and insistent that she could manage without any help. In April 2013, she signed Lasting Power of Attorneys (LPA) for her health and welfare and property and financial affairs naming Mr and Mrs C as donees.

AJ was referred to social services by a psychiatric nurse. Mrs C said that she could not continue with her caring role and that her husband had planned a fortnight’s holiday. She felt that permanent residential care was required for AJ.  The social worker offered to find a home nearby for respite while Mr. and Mrs. C were away, and it was hoped that if AJ settled she could remain in the care home on a permanent basis.

Just before they went on holiday, AJ visited the home. She stated that she did not wish to be there and repeatedly asked to leave. An urgent authorisation was granted by the manager of the home and a request was made to the local authority for a standard authorisation, which was granted for 21 days.

Mr C was appointed AJ’s Relevant Person’s Representative (RPR), as the Lasting Power of Attorney permitted them to select a family member to represent her. Mr C supported AJ continuing to be accommodated in a care home, even though it amounted to a deprivation of her liberty. An Independent Mental Capacity Advocate (IMCA) was also appointed to act for AJ.

Due to a lack of communication between the IMCA and Mr C, and Mr C’s lack of representing AJ’s challenge to her care home placement, it was ruled that extra care had to be taken when decided who would act as the RPR in DoLS authorisations, and that Local Authorities must make sure they are affording people an effective right to challenge their detention at the Court of Protection.