Care users need stronger human rights protections – JCHR report finds
22 July 2022
The Joint Committee on Human Rights has warned that gaps remain in how vulnerable people are protected in care settings, leaving their human rights at risk of being breached. In a report published today, it finds that mechanisms such as Do Not Attempt Cardio Pulmonary Resuscitation notices and Deprivation of Liberty Safeguards are often not applied correctly, meaning treatment can be wrongfully withheld or an individual’s liberty infringed. It calls on the Government to work with the Care Quality Commission (CQC) to ensure there is stringent oversight of how care providers implement safeguards designed to protect the human rights of care users.
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The report also raises concerns about the slow progress in securing visitation rights for care users. It warns that continued blanket restrictions are a needless risk to the mental and physical wellbeing of care users. It calls on the Government to establish a legal right for care users to nominate individuals for visiting rights. It also calls on the CQC to play a greater role in ensuring care providers are not needlessly blocking care users from seeing loved ones.
The Joint Committee finds that there is currently an imbalance in how human rights are protected in care settings. Where care is publicly funded or arranged, the Human Rights Act can be used directly to uphold the rights of care users, but that is not necessarily the case where care is privately funded. This means that individuals in the same care setting might have different human rights protections. It calls on the Government to consult on whether the protections of the Human Rights Act should be extended to those receiving care and support from all regulated providers.
Chair of the Joint Committee on Human Rights, Joanna Cherry MP QC said:
“Care users are some of the most vulnerable in our society and it is vital that the right mechanisms are in place to ensure that they receive appropriate care, accompanied by safeguards that recognise that, for some, the capacity to make informed decisions may be impaired. There also needs to be a careful balance that protects their human rights whilst allowing action to be taken to prevent a risk of harms.
We are concerned that too often safeguards are not being applied correctly. Measures that should be tailored to individual needs, whether it concerns the right to a visit from a loved one or the question of whether someone should be resuscitated, are instead applied across a ward or age group. This is wrong and should not happen.
We have called on the Government to do more to ensure there is a water-tight framework in place to ensure that the treatment of care users is adequate and their human rights respected. The Government must also make sure that care providers are actually following applicable guidelines as they should.”
Do Not Attempt Cardiopulmonary Resuscitation notices
Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) notices mean that if an individual goes into cardiac arrest cardiopulmonary resuscitation should not be attempted as it would be futile or not in the best interests of the patient. Concerns have been raised that notices are being applied to individuals based solely on their age or condition, and without adequately consulting the individual or their relatives. There are additional concerns that DNACPR notices have been wrongly applied, meaning that other treatments have been withheld.
The report notes that Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) must only be used to decide whether an individual receives cardiopulmonary resuscitation. Care users and their relatives or representatives should be adequately involved in DNACPR notices, with comprehensive record keeping, monitoring and review at an organisational level to ensure best practice is being observed. Notices should never be applied to groups of individuals or affect decisions about other treatment decisions.
It calls on the CQC to ensure that organisations involved in overseeing and applying DNACPR orders place care users at the centre of decision making, ensuring their human rights are protected.
The Joint Committee finds that restrictive practices, such as the use of chemical or physical restraints, should only be used where strictly necessary. Enforcing restrictive practices without good reason could amount to a breach of the prohibition of torture and inhuman or degrading treatment. The report notes particular concerns about their use for people with dementia or learning disabilities. It calls on the Government to work with the CQC and Ombudsman bodies to ensure that guidelines over its use comply with the requirements of human rights law.
Deprivation of Liberty Safeguards
There are concerns that people are being deprived of their liberty, where they are placed under continuous supervision and not free to leave, without adequate safeguards in place. It calls on the Government to work with regulators and stakeholders to ensure providers fully understand how the Deprivation of Liberty Safeguards framework should work and improve compliance with statutory requirements. It warns that the introduction of the new Liberty Protection Safeguards must not repeat the failing of the existing framework, it also calls for a firm timetable to be set for implementation so that unnecessary delays are avoided.
The report additionally calls for improved mechanisms for those who have been detained unlawfully or their representatives to challenge their treatment, including greater access to legal aid.
Some restrictions on visiting rights that were implemented during the pandemic and national lockdowns persist in the care sector, despite Government guidance indicating that “there should not normally be any restrictions to visits into or out of the care home”. The Joint Committee finds that restrictions can be harmful to care users and detrimental to their wellbeing.
The Committee calls on the Government to introduce legislation to give care users the legal rights to nominate one or more individuals to visit and provide care and emotional support, with the same infection prevention and control rules to be followed as care staff.
It further finds that the Government should legislate to mandate care providers to inform the CQC of any changes to visiting. The CQC should also make visiting restrictions a central consideration when carrying out monitoring and regulation of care homes.
Making a complaint
At present, the complaints system governing the care sector is confusing, time consuming and often does not result in an effective resolution. The Joint Committee calls for the complaints system to be streamlined, with all complaints to be managed by the Local Government and Social Care Ombudsman or the Parliamentary and Health Service Ombudsman to reduce confusion about where to direct complaints.
Removing the role of handling complaints related to the Mental Health Act 1983 from the CQC could also allow it to focus on monitoring performance and overseeing regulation. However, the CQC should ensure that providers are handling complaints appropriately and implementing decisions by ombudsman bodies correctly.
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