Older People & Human Rights
in Care Contexts:
Is there a right to care?
Dr Sue Westwood,
Lecturer, Keele Law School,
Keele University.
Outline of Presentation
• Older People &
• Conclusion: Older
Rights
People Need a
• Care Ethics/ Care Right To Care.
Rights
• Whose Duty To
Provide Care?
• Whose Right To
Receive Care?
OLDER PEOPLE
AND (CARE)
RIGHTS
European Convention on Human
Rights (ECHR)
•
•
•
•
•
•
•
•
•
•
•
Right to life (Art 2)
Freedom from torture/inhuman/degrading treatment/punishment (Art3)
Freedom from slavery/servitude/forced/compulsory labour (Art 4)
Right to liberty and security (Art 5)
Right to a fair trial (Art 6)
Freedom from punishment without law (Art 7)
Right to respect for private & family life, home & correspondence (Art 8)
Freedom of thought, conscience & religion (Art 9)
Freedom of expression (Art 10)
Freedom of assembly & association (Art 11)
Freedom from discrimination in the enjoyment of rights (Art 14)
Human Rights in Context
Human rights protect everyone in Britain and affect every aspect of
our lives. They are about our right to be treated with dignity, respect
and fairness by the government and our public authorities, such as
hospitals, care homes, the police or prisons. They are about the
freedom to voice ideas openly and to protest if you disagree with
government policy. They are about protecting individuals from
arbitrary and excessive action by government or public officials that
may result in loss of life, liberty, degrading treatment or intrusion into
people’s personal lives. We take many of these rights for granted, and
often do not realise how successfully our legal and institutional
systems work to protect and uphold them.
EHRC (2012: 7)
(Art3)
Freedom from torture/ inhuman/
degrading treatment/ punishment
There is evidence that some people who use health and
social care services are at risk of inhumane and degrading
mistreatment which breaches Article 3… To be covered by
Article 3, the treatment must be bad enough to reach the
minimum level of severity. However, the threshold is high…
There may be cases in which older people, for example,
have been badly treated by a care worker but not so badly
that the behaviour would constitute inhumane or
degrading treatment. (EHRC (2012: 7/18)
Example of Breach of Art3
Mrs H, 88, was deaf and partially sighted. After a fall at home,
she was hospitalised for four months suffering from acute
confusion. While in hospital, she experienced poor standards of
care and had several further falls, one of which broke her
collarbone. She was transferred to a care home by ambulance
while strapped to a stretcher in a state of agitation and distress.
On her arrival the manager noticed that she had numerous
unexplained injuries, was soaked with urine and was dressed in
clothing held up with large paper clips. She was bruised,
dishevelled and confused. The following day she had to be
readmitted to a local hospital and died there. (EHRC 2012: 82)
EHRC (2016): Close to Home: An
inquiry into older people and human
rights in home care
The inquiry, the first of its kind into this issue, has found that
although many older people receive care at home which
respects and enhances their human rights, this is by no
means a universal experience. It uncovered areas of real
concern in the treatment of some older people and
significant shortcomings in the way that care is
commissioned by local authorities…. Bare compliance with
the Act is not enough; public authorities also have ‘positive
obligations’ to promote and protect human rights. (3)
EHRC (2016): Close to Home
• Older people not being given adequate support to eat
and drink (in particular those with dementia) and an
unfounded belief that health and safety restrictions
prevent care workers preparing hot meals.
• Neglect due to tasks in the care package not being carried
out, often caused by lack of time.
• Financial abuse, for example money being systematically
stolen over a period of time.
• Chronic disregard for older people’s privacy and dignity
when carrying out intimate tasks.
(p4)
EHRC (2016): Close to Home
• Talking over older people (sometimes on mobile phones)
or patronising them.
• Little attention to older people’s choices about how and
when their home care is delivered.
• Risks to personal security, for example when care workers
are frequently changed sometimes without warning.
• Some physical abuse, such as rough handling or using
unnecessary physical force.
• Pervasive social isolation and loneliness experienced by
many older people who lack support to get out and take
part in community life.
(p5)
BIHR: Older People’s Human Rights
• Also confirm that there are human rights concerns about the
care of older people in hospital/care and/or nursing homes.
• Have demonstrated that advocates can mobilise human rights
to address care deficits, e.g. an older person being passively
restrained in a tip-back armchair (BIHR & Age UK 2011)
HOWEVER, these are examples of how human rights
are relevant to the provision of care, and to care
quality. There is no human right to RECEIVE care
under the European Convention on Human Rights.
UN Convention on the Rights of Older
Persons
• A convention would:
– provide the necessary, legally binding protection of
older people’s rights under international law;
– provide clarity on what older people’s rights are and
the minimum standards and actions necessary to
protect them.
(HelpAge International, 2010)
• This could include a right to care.
CARE ETHICS/
CARE RIGHTS
Feminist Care Ethics (1)
Unlike virtue ethics that focuses on individual
qualities of practitioners necessary for ethical
practice… the distinctive contribution of care
ethics is to offer a critical take on the political
dimension of care as a collective responsibility …
on the institutional context in which care work is
performed… as well as the power relationships
characterising care-giving and receiving and in
understanding people in relationship to others
(Ward and Barnes, 2016: 6)
Feminist Care Ethics (2)
We have a moral and ethical duty to provide
care to one another. It is a collective duty, not an
individual duty. Without care, society cannot
function.
Feminist Care Ethics vs Care Rights
• Feminist care ethicists emphasise a duty to
provide care, rather than a right to receive
care.
• Although they prioritise care as a human value
and act, they stop short of claiming care is a
right.
Martha Nussbaum (1)
• Capabilities approach (Sen): No good giving a
bicycle to someone who cannot ride a bike.
• Nussbaum, unlike Sen has compiled lists of
essential capabilities:
– Life. Being able to live to the end of a human life
of normal length; not dying prematurely, or before
one's life is so reduced as to be not worth living.
– Bodily Health. Being able to have good health,
including reproductive health; to be adequately
nourished; to have adequate shelter.
Martha Nussbaum (1)
– Bodily Integrity. Being able to move freely from
place to place; to be secure against violent assault,
including sexual assault and domestic violence;
having opportunities for sexual satisfaction and for
choice in matters of reproduction.
– Senses, Imagination, & Thought. Being able to
use the senses, to imagine, think, and reason—
and to do these things in a "truly human" way, a
way informed and cultivated by an adequate
education…
Martha Nussbaum (2)
– Emotions. Being able to have attachments to
things and people outside ourselves; to love those
who love and care for us, to grieve at their
absence; in general, to love, to grieve, to
experience longing, gratitude, and justified anger.
– Practical Reason.
– Affiliation.
– Others. Being able to live with and toward others,
to recognize and show concern for other humans,
to engage in various forms of social interaction.
Martha Nussbaum (3)
– Having the social bases of self-respect and nonhumiliation; being able to be treated as a
dignified being whose worth is equal to that of
others.
– Other Species. Being able to live with concern for
and in relation to animals, plants, and nature.
– Play. Being able to laugh, to play, to enjoy.
– Control over One's Environment.
– Political.
– Material.
NO CARE.
WHOSE DUTY TO
PROVIDE CARE?
Care from Whom?
• Individuals?
• The ‘Community’?
• The State?
– Growth of asset-based approaches to care.
– Retreat of state from care.
• Care and austerity – who should pay for care
and how much?
• Resources and rights tensions
(Daly and Westwood, 2017)
WHOSE RIGHT TO
RECEIVE CARE?
Care Act 2014
• An Act to make provision to reform the law
relating to care and support for adults and the law
relating to support for carers; to make provision
about safeguarding adults from abuse or neglect;
to make provision about care standards
• Care Act Guidelines limit who is entitled to care
under the Care and Support (Eligibility Criteria)
Regulations 2014:
Eligibility criteria
(a)the adult’s needs arise from or are related to a
physical or mental impairment or illness;
(b)as a result of the adult’s needs the adult is
unable to achieve two or more of the outcomes
specified in paragraph (2); and
(c)as a consequence there is, or is likely to be, a
significant impact on the adult’s well-being.
Specified outcomes (1)
(a) managing and maintaining nutrition;
(b) maintaining personal hygiene;
(c) managing toilet needs;
(d) being appropriately clothed;
(e) being able to make use of the adult’s home
safely;
(f) maintaining a habitable home environment;
(g) developing and maintaining family or other
personal relationships;
Specified outcomes (2)
(h) accessing and engaging in work, training,
education or volunteering;
(i) making use of necessary facilities or services in
the local community including public transport,
and recreational facilities or services; and
(j) carrying out any caring responsibilities the
adult has for a child.
Growing Unmet Need
The number of older people in England who don’t get
the social care they need has soared to a new high of
1.2 million – up by a staggering 48% since 2010.
This means nearly 1 in 8 older people are struggling
without the help they need to carry out essential
everyday tasks, such as getting out of bed, going to the
toilet, washing and getting dressed.
http://www.ageuk.org.uk/latest-news/12m-older-people-dont-get-the-socialcare-they-need/
CONCLUSION:
OLDER PEOPLE & A
RIGHT TO CARE?
The Need for a Right to Care
• Entitlement to receive care not enshrined in
any rights at present.
• Without rights, thresholds for care
entitlement can shift, and, in times of
austerity, shrink.
• Care should not be linked to economics.
• Establishing good care as a basic human right
would secure care for many older people who
currently do not receive it.
THANK YOU!
Bibliography
• British Institute of Human Rights (BIHR) & Age UK (2011) Older People
and Human Rights: A reference guide for professionals working with older
people. London: BIHR & Age UK .
• Brown, K., Ecclestone, K., & Emmel, N. (2017). The Many Faces of
Vulnerability. Social Policy and Society, 1-14.
• Daly, M. (2002). Care as a good for social policy. Journal of Social Policy,
31(02), 251-270.
• Daly, M. and Westwood, S. (2017 frth) An Asset-Based Approach, Older
People and Social Care: An analysis and critique. Ageing & Society.
• EHRC (2012) Human Rights Review 2012: How Fair is Britain? An
assessment of how well public authorities protect human rights. London:
EHRC.
• EHRC (2016) Close to Home: An inquiry into older people and human rights
in home care. London: EHRC.
• Greenwood, N., Habibi, R., Smith, R., & Manthorpe, J. (2015). Barriers to
access and minority ethnic carers' satisfaction with social care services in
the community: a systematic review of qualitative and quantitative
literature. Health & social care in the community, 23(1), 64-78.
Bibliography
• Herring, J. (2009). Older people in Law and Society. New York: Hart.
• HelpAge International (2010) Strengthening Older People’s Rights: Towards
a UN Convention. A resource for promoting dialogue on creating a new UN
Convention on the Rights of Older Persons. https://social.un.org/ageingworkinggroup/documents/Coalition%20to%20Strengthen%20the%20Rights%20of
%20Older%20People.pdf
• Vlachantoni, A., Shaw, R. J., Evandrou, M., & Falkingham, J. (2015). The
determinants of receiving social care in later life in England. Ageing and
Society, 35(02), 321-345.
• Ward, L., & Barnes, M. (2016). Transforming practice with older people
through an ethic of care. British journal of social work, 46(4), 906-922.