Over the last nine months Scottish Care has published two human rights documents, the Convention on the Rights of Residents in Care Homes for Adults and Older People and two weeks ago at the annual Care at Home and Housing Support Conference, the Convention on the Rights of People receiving Care at Home and Housing Support Services. Both were products of collaborative work where individuals who used support services articulated their sense of what constituted for them basic rights and quality in service provision.
Nearly two decades ago the Human Rights Act incorporated the European Convention of Human Rights into domestic legislation enabling individuals if they felt that there had been a breach in their human rights to take their case to a local court without having to have recourse to a court distanced from them in Europe. The whole process was badged as ‘Bringing Rights Home.’
In some sense that is what both of the Scottish Care Conventions have sought to do. They have sought to bring ‘human rights’ into the homes of individuals who use social care support whether they live in residential care or in the wider community. They have sought to make human rights something which spoke to their needs and aspirations, something which was real rather than a set of abstract concepts used by the media and politicians to score cheap points in a debate. As one of the participants said:
‘Human rights are ours.’
The First Minister in a speech in the Pearce Institute in Govan in September 2015 in addressing attempts to repeal the Human Rights Act spoke of the need to see the Act as a floor rather than as a ceiling beyond which one could not go or aspire.
“When the Human Rights Act was passed in 1998, the intention was that the Convention would provide a floor for human rights across the UK. That’s because it would be incorporated within the domestic law of all nations of the UK – through the Human Rights Act, and the different devolution settlements.
But the Convention was always intended to be a floor, not a ceiling. Devolved governments have the flexibility to go further, if we choose. And so complying with the Convention should not be the limit of our ambitions.”
(First Minister Nicola Sturgeon, Pearce Institute, Govan, 23 September, 2015)
The First Minister challenged civic and public society in Scotland to attempt to work together to achieve a context where human rights were at the heart of all we do in Scotland. In a small way the Conventions seek to contribute to that process.
The analogy of bringing rights home is a helpful one. To a considerable degree we have indeed brought rights home but I also suspect that we have kept human rights at the doorstep. Human rights have not entered into every room and corner of our ‘house of care’. We have, and are increasingly articulating the role human rights can play in the delivery of quality services which respect and enhance the dignity, voice and choice of those who use services and supports. The new National Care Standards will go a long way to embedding a rights-based approach to care. But if that is all we do – and that’s not to diminish that process – we will still be keeping human rights in one small room, a room about individual relationships and rights.
For human rights to mean more than just platitudinal rhetoric they have to infiltrate the whole of our health and social care system. Put simply you cannot have a human rights based approach to care and support without a human rights based approach to budgeting, to finance allocation and to commissioning.
It is all very well to require providers and those who work in care services to embed human rights at the heart of their work and services, but unless you have a system whereby human rights can direct the decisions we make about spending limited resources, and unless we change procurement processes to properly operate on a human rights basis then we are just tinkering with rights, we are just keeping human rights at the doorstep.
So at the Care at Home Conference we called upon our partners in Scottish Government and local authorities to work with us in building and developing a human rights based approach to commissioning and budgeting. We are partly there with good rights based procurement guidance, but we have a long way to go.
So what might such a model look like? Well it could perhaps be based on the widely recognised PANEL principles, which is an approach to what a human rights based approach means in practice. PANEL stands for Participation, Accountability, Non-Discrimination, Empowerment and Legality.
What might this mean for budgeting, procurement and commissioning?
Participation – People should be involved in decisions that affect their rights. So providers and those who use services should be key partners in strategic and local decision making, not informed or engaged in consultation after decisions have been made.
Accountability – There should be monitoring of how people’s rights are being affected, as well as remedies when things go wrong. If insufficient resource is allocated to enable an individual to be adequately supported then something is done to address this.
Non-Discrimination – Nobody should be treated unfairly because of their age, gender, ethnicity, disability, religion or belief, sexual orientation or gender identity. Is the allocation of public resources discriminatory for older people? Do we enable the same degree of choice and personal budget allocation to those over 65 as to those under 65, to those who live in our care homes and those who live in their own homes?
Empowerment – Everyone should understand their rights, and be fully supported to take part in developing policy and practices, which affect their lives. Do those who use supports adequately understand their right to involvement in decisions around their support and care e.g., in terms of self-directed support?
Legality – An approach like this is about going beyond the minimum legal requirements and mainstreaming human rights in services, policies and practice to make them run better for everyone.
The challenge is to fully bring human rights home, so that whatever part of our system of care and support from assessment to delivery, from budget allocation to workforce support, we have human rights at the heart and core, not rhetoric but a person centred approach that values the individual and gives real choice, control, involvement and dignity.
Scottish Care is committed to embedding both our Conventions and building upon that work in the months and years to come. So feel free to keep visiting us and join us as we bring rights home.
Dr Donald Macaskill, 5th July 2016
This blog builds on a speech delivered to the 2016 Care at Home and Housing Support conference on 23rd June. This can be seen at https://www.youtube.com/watch?v=X7uUf0v6phY