Daily Telegraph, 17 October 2013: Numerous middle class elderly people are likely to be protected after a vote in the House of Lords led to the closing of a human rights loophole which meant that those who pay for their own care do not have the same protection as those cared for by the state.
While health minister Earl Howe argued the legislation was neither ‘necessary nor appropriate’, the peers voted 247 to 218 to defeat the government and support extending the Human Rights Act to private care homes.
What are the potential ramifications of this vote?
The Human Rights Act 1998 (HRA) makes it unlawful for any public authority to act in a way which is incompatible with the European Convention on Human Rights and Fundamental Freedoms (ECHR). Section 6 (3) (b) of the HRA defines “public authority” as “any person certain of whose functions are functions of a public nature”.
Unfortunately the Courts have had difficulty in interpreting the phrase “functions of a public nature”, as demonstrated by the case of YL v Birmingham (2007).
YL was an 84 year old lady suffering with Alzheimer’s. In the performance of its duties under s21 and s26 of the National Assistance Act 1948 (NAA), Birmingham City Council contracted with Southern Cross Healthcare Ltd (Southern Cross), to provide YL with residential care. The local authority contributed towards the costs of that care. When the relationship between YL’s family and Southern Cross deteriorated, Southern Cross served 28 days notice, terminating YL’s right to remain in the care home. YL challenged this as a breach of her right to respect for her home and a family life under article 8 of the ECHR, and so unlawful under section 6(1) of the HRA. The question of whether YL could claim the protection of article 8 against Southern Cross turned on whether the company could be said to be exercising a function of a public nature when providing publicly funded residential care. In this case, by 3 votes to 2, the Lords held that the provision of residential care by private or third sector organisations did not fall within the definition of “functions of a public nature”.
This decision left thousands of service users with no direct remedy against their service provider in any case of neglect, abuse or undignified treatment.
Section 145 was then introduced into the Health and Social Care Act 2008. This clause provided that anyone providing accommodation, with nursing or personal care, under s21 or 26 of the NAA in a care home is exercising a “function of a public nature” in doing so.
However, s145 only applied to residential care provided under the NAA. Domiciliary care provision, supported living arrangements and residential services provided under other legislation were still not brought under the protection of the HRA.
The amendment to the Care Bill 2013 moved by Lord Low makes it clear that the provision of care and support services is a public function. Any person who provides regulated social care (ie services regulated by the Care Quality Commission) exercises a function of a public nature in doing so.
The effect of this amendment will to be to afford equal protection under the HRA to everyone in receipt of regulated social care, irrespective of where the care is provided and who pays for it.
What were the arguments against the closing of the legal loophole?
Arguments against the proposed amendment asserted that the amendment did not afford any greater protection for vulnerable adults. The Government’s position was that “all providers of publicly arranged health and social care should consider themselves bound by Section 6 of the HRA, in any event. In addition, Lord Faulks argued that where poor quality care is provided, a service user will already have remedies in tort or for breach of contract. He was concerned that service users reliant on the proposed amendment would have access to better remedies under the HRA than they would in Strasbourg. It was also put that the Care Quality Commission, as regulator, is subject to the HRA and as such is under a positive obligation to ensure service users’ rights are protected.
Concerns were also raised as to the possible wider implications for private schools, private hospitals and other such institutions or providers.
How does this affect private care home operators?
Private care home providers will be bound by the duty imposed by Section 6 of the HRA and must not act in any way which is incompatible with the Convention rights. So, for example, if their service user is unlawfully deprived of their liberty, subjected to inhuman or degrading treatment in their care, or if the provider unlawfully interferes with their right to respect for their family life or home, then an action may be brought against the provider under the HRA.
Providers will need to review their policies and procedures and consider whether their managers and staff may need further training on these issues.
What additional protections have been granted to those who pay for their own care?
Anyone who pays for all of their own care, as a self funder, and anyone who receives a contribution towards their overall care costs from the local authority will have exactly the same rights under the HRA as an individual whose care is fully funded by the state.
Could this set a precedent for the expansion of the scope of the HRA 1998 to include other private bodies? Does this add to discussion on quasi-public bodies/those providing a public service?
The potential floodgate concern was an argument raised during the Lords’ debate and in the case of YL itself. Lord Hope dismissed this, highlighting that the proposed amendment was “a precisely targeted measure which deals with a particular problem”, which he did not feel would signal to the Courts that Section 6 (3) (b) of the HRA would necessarily have wider application.
Although the amendment specifically defines “care and support services” as a public function, there is still no formal definition of “public function” per se.
What should our response be?
Although the Care Bill 2013 has yet to pass through the House of Commons, and may be months away from implementation, care providers will need to ensure they fully understand their obligations to service users under the HRA. Anthony Collins Solicitors advise clients within the Health and Social Care sector and also provide a service for vulnerable individual service users. We are well placed to work in partnership with you, in preparation for these significant legislative developments