Written evidence from the British Institute of Human Rights (COV0236)

Evidence gathered from: Our work with people working in health and care during Covid-19

Executive summary:

BIHR welcomes this opportunity to provide evidence to the JCHR as part of its inquiry into the human rights implications of the Government’s response to Covid-19. Our policy responses are directly informed by people’s real-life experiences of the issues, drawn from our work to support people to benefit from their human rights in their daily experiences. Our key findings are summarised below:

-          Over 82% of people working in health and care who responded to our call for evidence told us it has been harder to uphold human rights during Covid-19.

 

-          Over 76% of people working in health and care who responded to our call for told us that during Covid-19 they were not provided with legal training or clear information about upholding human rights law

 

-          Over 79% of people working in health and care who responded to our call for evidence told us that during Covid-19 they were not provided with legal training or clear information about the use of Emergency Powers under the Coronavirus Act (CVA).

 

Background:

The initial Coronavirus Act was passed very quickly, and UK government has issued both law (Regulations) and guidance at speed, often with conflicting or confusing public messaging. There are some welcome references in the Coronavirus Act which make it clear that decisions to change care and support should not be incompatible with human rights. However, this was not accompanied by measures to enable people to understand what these human rights are and ensuring that frontline workers know how to make rights respecting decisions.  Thus there are two elements to accountability for the responses to Covid-19: a) central Government’s response through law, policy, guidance and resourcing; and b) the implementation of these responses at local level, and therefore people’s everyday experiences of risks to their human rights.

BIHR’s work:

The British Institute of Human Rights is a charity working in communities across the UK to enable positive change through human rights.

We work with three main groups across the UK.

  1. People accessing (or trying to) access services, their family members and people that care about them.
  2. Formal advocates (e.g. IMCA, IMHA, etc.), self-advocates, and other community, campaigning, and advocacy groups.

People with legal duties to respect and protect rights. Including those working in public services and those working in private, charitable, or voluntary bodies delivering public services.

BIHR’s evidence submission:

Since March 2020 our work has specifically focused on the impact of Coronavirus law and policy on people and its implementation through local decision-making. Across the UK, we have worked with over 400 people accessing public services including their families and those who care about them and over 950 people working in health and care services including advocates and campaigners.

The evidence gathered through our work informs our main concerns and suggestions for the steps that need to be taken to ensure that measures taken by the Government to address the Covid-19 pandemic are human rights compliant.

We have prepared an evidence submission for each of the groups we work with, so that the Committee members have access to the direct experiences of all three groups when considering the Government’s response. This submission focuses on the experiences of people working in health and care. For the purposes of this JCHR report, the data will be shown as UK wide. We will be submitting nation specific data to devolved inquiries where appropriate.

Important demographics to note when considering the evidence contained in this report: 

-          90% of those who responded to our call for evidence work in England, 7.5% in Scotland, 2.5% in Wales. There were no responses from those who work in Northern Ireland. [1]

-          Over 50% work in community settings, over 30% in residential settings, 17% in hospital settings, 4.88% in primary care. Other respondents included those who work in the charity/voluntary sector, hospice, safeguarding and in the therapeutic community.

 

-          Respondents support a range of people and their families. Over 68% support older people with physical disabilities and/or health care needs, 58% support adults with learning disabilities and/or Autism, 56% support older people with mental health needs, over 14% support children with physical disabilities and/or health care needs.

BIHR’s methodology:

As a human rights organisation, we ourselves use a human rights approach. We have used the PANEL human rights framework endorsed by the United Nations in our evidence gathering and as the structure of our submission. We take each principle in turn, sharing people’s experiences and in doing so answer the questions the Committee is seeking views on through the lens of human rights.

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Click on the headings below to read the evidence for each human rights principle.              

Participation

Accountability

Non-Discrimination

Empowerment

Legality

 

 

 

Participation:

 

In order for the measures taken by the Government to address the Covid-19 pandemic to be human rights compliant: People must be involved in decisions that affect their rights.

Autonomy is covered under Article 8 of the European Convention, brought into UK law in the Human Rights Act (1998), which also includes the legal duty on public authorities to respect and protect this right in their everyday functions.

In people’s daily lives, this means that changes to care and support should be discussed with the individual, their family or other chosen person. Where the person has been assessed as lacking capacity to make specific decisions about care (or changes), the safeguards under the relevant capacity legislation must be met. These safeguards include, encouraging and enabling participation, considering past wishes and feeling, consulting anyone named by the person and much more.

What did people working in health and care tell us about participation during Covid-19?

  1. We asked: “Since the start of Covid-19 have you been able to involve the people you support in decision making which affects them?”

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1.1 We asked, “Would you like to tell us more?”

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1.2 We asked, “Since the start of Covid-19, when decisions have been made about someone’s care and support did you feel able to explain why this decision was made and for how long it would last?

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BIHR recommendations for ensuring participation:

-          The Government, both centrally and locally must make it entirely clear that all legal duties under the Human Rights Act remain in place regardless of Emergency Coronavirus legislation. This includes the right to autonomy (having a say over your care) under Article 8 (HRA).

 

-          It must be made clear that where a person’s participation in decisions about their care and support is restricted, this restriction must follow the 3-stage test of lawful, legitimate, and crucially proportionate (the least restrictive option possible).

 

-          Clarity must be provided around the use of Emergency Powers, it must be made clear that where any changes are made to a person’s care and support, the person and their chosen family/friends (those who will be impacted) must be supported to be involved in decision making. Easements must be applied compatibly with human rights law.

 

-          All public officials must be supported to recognise and respond to a situation in which a person’s legally protected human rights are at risk. This is necessary during Covid-19 and beyond.

 

Accountability

 

In order for the measures taken by the Government to address the Covid-19 pandemic to be human rights compliant: There should be monitoring of how people’s rights are being affected, as well as remedies when things go wrong.

The section 6 HRA duty places a legal duty on public officials (and those delivering a function of a public nature) to respect, protect and fulfil human rights. This duty is about every decision frontline staff make, the policies and protocols put in place by managers, and the strategic decisions of leadership. This does not change under Coronavirus law and policy.

What did people working in health and care tell us about accountability during Covid-19?

2. We asked, “When a decision was made about someone's care or support during Covid-19 were you able to tell people how they could challenge that decision or raise a complaint?”

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2.1 We asked, “Would you like to tell us more?”

 

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2.2 We asked, “Do you feel able to raise a concern or challenge the body you work for about a decision/issue/policy etc that risks the human rights of people accessing care and support? 

 

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2.3 We asked, “Do you feel able to raise a concern or challenge the body you work for about your own human rights as a staff member?”

 

 

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BIHR recommendations for ensuring accountability:

-          There must be open and accessible processes for people, their families and those who care about them to raise issues with care and support during Covid-19.

 

-          Where there have been changes to complaints processes as a result of Covid-19 these must be the least restrictive option available to the public service (i.e. there cannot be a blanket suspension of complaints procedures, this is not a proportionate response). Staff should be made aware of these processes and be able to inform the people they support of how to raise an issue during Covid-19.

 

-          There must be clear avenues for staff to raise issues they are facing when trying to uphold human rights during Covid-19. Where staff are experiencing issues with equipment, resources, technology or anything else which puts their rights or the rights of people they support at stake, this must be taken seriously as a breach of human rights law and addressed immediately.

 

-          People working in health and care must be provided with accurate and up to date information about which Emergency Powers are in use and which are not.

 

-          Information about the Emergency Powers being used at local level should be monitored locally and centrally via a robust procedure. People working in health and social care must be consulted about their experiences. This enables informed decisions to be made about the continued availability of the Powers. In doing this, the Government can identify trends and concerns, including human rights flash points during the pandemic, as well as positive practice which others can learn from. Please see our briefing on transparency issues in Scotland, here.

 

Non-discrimination

 

In order for the measures taken by the Government to address the COVID-19 pandemic to be human rights compliant: Both direct and indirect discrimination must be prohibited, prevented and eliminated. People who face the biggest barriers to realising their rights should be prioritised.

Article 14 in the Human Rights Act  sets out that the enjoyment of rights and freedoms must be secured without discrimination on any grounds, including but not limited to sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Importantly, and differently to the Equality Act, this encompasses discrimination beyond the nine protected characteristics, and recognises discrimination based on combined or multiple factors, such as having Autism and living in a residential unit, or being an older person and living in a care home.

What did people working in health and care tell us about discrimination during Covid-19?

3.We asked, “Were you able to continue to meet your duties under the Equality Act during Covid-19? Meaning you were able to consider specific characteristics or needs when making decisions. This could include (but is not limited to) considering any disabilities, mental health or capacity issues, race or ethnicity, age, gender or other characteristics or needs.”

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3.1 We asked, “Can you tell us more about which groups were affected and how.”

The data gathered through this evidence call highlighted concerns of direct and indirect discrimination impacting the following people (from our wider work we know that this list is not exhaustive and will be publishing more expansive data.)

-          People with disabilities

-          People with mental health issues

-          People with dementia

-          People with learning disabilities and/or autism

-          Older people

-          Young people without access to technology or phones

-          Lower income families

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3.2 We asked, “Do you feel that during Covid-19 you as a staff member have been treated without discrimination by your employer?

 

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BIHR recommendations for ensuring non-discrimination:

-          The Government must ensure that all public officials are fully trained, resourced and supported to practically implement their legal duties under both the Human Rights Act (1998) and the Equality Act (2010).

 

-          The Government must make it entirely clear that these non-discrimination legal duties have not changed as a result of Coronavirus, and to ensure that their actions responding to Covid-19 are not discriminatory in themselves.

 

-          Where the Government has knowledge that discrimination has occurred (i.e. through this evidence call) this should be independently investigated, using human rights as the central framework and remedies put in place.

 

Empowerment

 

In order for the measures taken by the Government to address the COVID-19 pandemic to be human rights compliant: Everyone should understand their rights and be fully supported to take part in developing policy and practices which affect their lives.

What did people working in health and care tell us about empowerment during Covid-19?

4. We asked, “Since the start of Covid-19 have you been able to inform people about their human rights?”

 

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BIHR recommendations for ensuring empowerment:

-          The Government communications about Covid-19 (and beyond) should be centred in human rights. Thus far there has been very little evidence of this, even though the main responses to the pandemic focused on rights-restricting measures.

 

-          All public officials must be trained, resourced and supported to embed human rights law in every interaction and to involve people in those discussions and decisions.

-          People must be provided with easy to access, accessible information that enables them to understand their rights during Covid-19.

-          The Government must make it clear that everyone in the UK has human rights protected in law, that these are relevant to their everyday interactions with public authorities, with clarity on which rights can be restricted (the process for doing this lawfully, legitimately and proportionately) and which can never be restricted even during a pandemic for example, the right not to be tortured or treated in an inhumane of degrading way (Article 3, HRA).

 

Legality

 

In order for the measures taken by the Government to address the Covid-19 pandemic to be human rights compliant: Approaches should be grounded in the legal rights that are set out in domestic and international laws.

Domestically we have 16 rights under the HRA.  Some of these rights can be restricted in certain very specific circumstances for example, to protect the individual or the wider public from harm). Where this has been the case during Covid-19, any restrictions have to be applied lawfully, for a legitimate aim and in a way that is proportionate to the risk.  Other rights within the HRA, such as the Right to Life can never be lawfully interfered with by the state, that remains the case during Covid-19. 5. We asked, “Since the start of Covid-19 were you provided with legal training or clear information about upholding human rights law?

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5.1 We asked, “Since the start of Covid-19, were you provided with legal training or clear information about the use of Emergency Powers under the Coronavirus Act (CVA)?”

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5.2 Key human rights issues identified by people working in health and care during Covid-19:

People working in health and care who responded to our evidence call identified experiencing or being aware of the following rights issues during Covid-19.

The right to life (Article 2, HRA)

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The right not to be tortured or treated in an inhuman or degrading way (Article 3, HRA)

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The right to liberty (Article 5, HRA)

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The right to a fair trial (Article 6, HRA)

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The right to respect for private and family life and home and correspondence (Article 8, HRA)

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