Human Rights for Elderly Clients? - Elderly Client Adviser

Feature

posted 15 Nov 2000 in Volume 6 Issue 1

Human Rights for Elderly Clients?

By Gordon Ashton

The European Convention on Human Rights (ECHR) has at last become part of our law, or to quote the Lord Chancellor “has been brought home”. Everyone is jumping on the bandwagon and forecasting the changes that the Human Rights Act 1998 will make to our established way of life. Who does one believe, the lawyers who claim that the Act will enable us to assert our human rights or the politicians who fear that judges will be given too much power? We have always considered that we live in a free country so why do we need this legislation? The reality is that our fundamental personal rights have never been set in stone and the remedies that exist are inadequate to ensure that such rights may be enforced. Can it be wrong that individuals now have the ability to argue for their rights in their home courts even if this brings them – and the courts – into conflict with the state?

The difficulty is that the rights of the individual cannot be viewed in isolation and must be balanced against those of the state and of other persons. A sense of “proportionality” is required and it may be necessary to look at the “legitimate aim” and to consider whether interference with a human right is “necessary in a democratic society”. This is a difficult balancing act and one that possibly only judges are independent enough to perform. Hitherto only the judges of the European Court of Human Rights in Strasbourg have had that power, and breaches of the Convention to which we have been a signatory for nearly 50 years could not be raised in our own courts. The ability to address these arguments is of particular significance to infirm elderly people who are all too often marginalised in society.

Background

The ECHR was an international convention drafted largely by British lawyers and intended to ensure that the violation of liberties perpetuated by the Nazis would not recur. Hence the right to life (Article 2), prohibition of torture and forced labour (Articles 3 and 4) and the right to liberty (Article 5). Of more significance to the everyday life of elderly people in this country are the rights to a fair trial (Article 6), respect for private and family life, home and correspondence (Article 8) and freedom of thought and religion (Article 9). By a supplement to the Convention provision is made for the protection of property (Article 1 of the First Protocol). Although there is no stand-alone prohibition against discrimination, the enjoyment of the rights and freedoms set out in the Convention must be enjoyed without discrimination on any ground such as sex, race, birth or other status (Article 14). But these rights should not be taken entirely at face value because many are qualified; for example a person may be deprived of liberty in accordance with certain procedures prescribed by law. Nevertheless, on only a cursory examination of these articles it becomes clear that there is much of potential benefit for older people who encounter mental or physical disabilities.

One senior Scottish judge has described the Act as ‘a field day for crackpots, a pain in the neck for judges and a goldmine for lawyers’. Other judges are more supportive, notwithstanding the challenge to their established way of doing things. Cases from Strasbourg must be digested and new concepts mastered such as ‘proportionality’, ‘the margin of appreciation’, ‘horizontality’, ‘derogations’ and ‘reservations’. Even if the forecasted deluge of new cases does not materialise there will be additional arguments raised in those cases that do reach our courts, hence the need for additional public funding. Judges have been advised by the appeal courts to be robust in their approach and not to allow human rights points to be introduced without proper, reasoned argument. All judges and lawyers have had to be trained to cope with the change in our approach to domestic law. They have grown up in a regime based upon statute and the common law. Now they must seek to interpret all our law so as to be ‘human rights compliant’ whatever previous cases may say, Parliament must reconsider any legislation which cannot be so interpreted and new legislation must have a ‘statement of compatibility’. There is a twist in the tale: lawyers must treat the Convention as a ‘living instrument’ responsive to changes in society, so decisions made yesterday by the European Court of Human Rights may no longer be binding tomorrow. These are challenging times for lawyers - there is the potential to turn our law upside down in the name of a higher cause, yet if (as many believe) our law has developed in a way that respects human rights, it will only be a question of tinkering at the edges.

The right to life (Article 2)

It seems that the right to life includes the right to choose to die. But can someone else refuse medical treatment when it is thought that this is what the individual would have wished or can that assumption ever be reached? To what extent are age, quality of life or allocation of resources relevant factors when deciding whether to give or continue treatment to someone who will die without it? The Act may oblige us to focus upon different aspects of these intolerably difficult decisions. The recent dilemma of the conjoined twins is an extreme example of the balance that may need to be drawn between conflicting human rights.

Prohibition of torture (Article 3)

This extends to inhuman or degrading treatment, and although the threshhold might be high, one can contemplate it being exceeded in the treatment of people in mental institutions and even care homes. Situations arise where proper care standards are not maintained and the regime overlooks the fact that the persons ‘cared for’ are human beings with personal rights. The failure by a local authority to act where abuse has been reported may become an actionable breach of Article 3 and we shall now look to the Care Standards Act 2000 to police this area.

The right to liberty (Article 5)

Our Mental Health Act is already being considered for review, which is just as well because the existing criteria whereby individuals are detained in a mental hospital may not comply with the ECHR. Is there a deprivation of liberty when a dependent individual is placed in a care environment without any effective choice, lacking the will or the ability to move elsewhere? Will the existing powers to remove an individual to a ‘place of safety’ prove to be human rights compliant?

A fair trial? (Article 6)

It has already proved necessary to change the basis on which part-time judges are appointed so as to ensure that they are truly ‘independent and impartial’ following scrutiny in Scotland where the Convention became part of the law following devolution. A challenge to the way that our tribunals are conducted could be next, including those of the Appeals Service which deal with social security benefits and may not be seen as sufficiently independent of the administration. Housing and Council Tax Review Boards are already being replaced by the Appeals Service because they were composed of councillors from the local authority whose decision was in dispute. But having a fair trial of any dispute entails more than simply having an independent and impartial judge. The Mental Health Review Tribunal is vulnerable due to delays and lack of adequate powers to secure the liberty of detained patients.

Complaints and assessment procedures also appear to fall within the scope of this Convention right. The Court of Protection, which deals with the financial affairs of incapacitated adults, will come under scrutiny because of the brevity of its procedures, the blurring of the distinction between administrative and judicial decisions, and the role of the Assistant Masters. There are concerns that this court operates only in London and may not be accessible to those who depend upon its services. In criminal cases, the manner in which statements are taken from people with mental impairment must be re-considered if those statements are to be used in evidence against them. The participants to any adjudication (criminal or civil) must know the issues in advance, have an adequate opportunity to respond and be able to follow and participate in the proceedings. Those with mental or physical disabilities start with a disadvantage but this must not be allowed to become a real handicap in the attainment of justice. The normal procedures may need to be modified and support in the form of advice or independent representation must be provided where necessary. The right to a public hearing may be more controversial for infirm elderly people when intimate personal or confidential financial information is to be considered.

Respect for private and family life, home and correspondence (Article 8)

In many cases human rights come into conflict with personal welfare. Does the right to privacy take precedence over the need for monitoring (for example, in care homes) and is a drug straightjacket really more acceptable than electronic tagging? Could there be an interference with the right to respect for private and family life when a move to a care home results from a refusal to fund or provide services at home, especially when this would be a cheaper option? Will more consultation with residents be required before a decision is taken by a local or health authority to close one of its care homes?

When may the state, perhaps in the form of the health or social services authority, interfere in family life or the life of the individual? There is a delicate balance between protection and empowerment of vulnerable individuals, and one cannot hold the family unit to be inviolable, because abuse can and does take place in families. There may be a duty on the part of the authorities to step in and provide protection, and the expectation of this may be seen as another aspect of the human rights of the individual. The Human Rights Act will simply add a new dimension to the determination of the right of the authorities to intervene as between the son or daughter and mentally incapacitated parent. Above all, there will be more focus on the rights of the individual at the centre of any dispute and procedures must ensure that the voice of this person is heard. An example is the choice of ‘nearest relative’ for a patient under the Mental Health Act 1983. Hitherto the appointment has been made according to a statutory list with any dispute being resolved between the protagonists, but that will have to change. The patient will have to be given a say, if not a choice, in who is appointed to the extent that he or she is capable of exercising that right. When the best interests of an incapacitated person are being determined he or she will have to be consulted and listened to instead of being marginalised as in the past. It is obvious really, when you think of it, but it has fallen to the Human Rights Act to ensure that this fundamental right is not overlooked!

Enjoyment of property (Article 1, First Protocol)

One of the first issues to be tackled may be whether and to what extent social security benefits are property rights. Some are non-contributory or discretionary, but others such as pensions depend upon contributions and may therefore be regarded as acquired rights to property. There may be a breach of this article when an acquired benefit is withdrawn or reduced by a change in the regulations. However, it has been held that the determination of disputes concerning both insurance-based and means-tested benefits are determinations concerning civil rights so the right to a fair trial applies. In practice, this only relates to appeals because the initial decision on a benefit claim is of an administrative nature, but many appeals are dealt with ‘on paper’ and the procedure which requires the appellant to opt for (rather than out of) an oral hearing may be questioned. A diligent tribunal may adjourn for an oral hearing and encourage the appellant to attend when the decision is clearly borderline.

Discrimination (Article 14)

We already have the Disability Discrimination Act 1995, which is targeted against certain forms of discrimination, but there are gaps in the coverage including age discrimination. It may be possible to fill these with arguments under the Human Rights Act. When considering fundamental human rights we must not overlook all forms of discrimination. Link this with the right to life, to a fair trial or to the enjoyment of property and you have a powerful weapon to use against those who would seek to deny elderly people the entitlements and facilities that others take for granted. Should a decision be made to withhold medical treatment from an elderly person when it would be provided to someone else? Has the individual suffered discrimination in a trial or the entitlement to property? Access by family to personal records held by the authorities relating to an infirm member is a thorny problem, because unless there is a sustainable need to see those records the breach of confidentiality could infringe the right to a private life.

Whose rights?

We must remember that we are talking about the rights of the infirm individual and not the rights of other persons over that individual. The problem remains of interpreting and enforcing the rights of individuals who are incapable of doing so themselves. Who should be given this power and what if there is competition over the exercise of the power? The Convention is not a carer’s charter although it may become an important weapon in the armoury of carers seeking to assert the rights of the person cared for. The balance between family or carers and the authorities has not been shifted, but the matters to be taken into account when conflict arises may have changed.

Conclusion

Does this represent a brave new world or will it be the end of society as we know it? There has been much wild speculation about the possible excesses of the Act and breaches of human rights will no doubt be asserted in our courts far more than may be justified. The press will give prominence to any controversial decisions and overlook all the good that the Act may quietly achieve for vulnerable individuals. The reality is that judges are not incapable of ‘seeing the wood for the trees’ and the change in our legal approach will soon be taken for granted. Many people with disabilites, and their carers, may not be sad if the Human Rights Act does provoke a change in the society that they have grown up in and heralds the start of a brave new world. All too often the human rights of incapacitated people have been carelessly overlooked, but this new legislation will ensure that neither society nor Parliament persists in that failing provided that our lawyers are up to the task now entrusted to them.

By Gordon Ashton

The author is a district judge and member of the Law Society’s Mental Health & Disability Committee. He has written several books about the law and older or mentally disabled people including ‘Elderly People and the Law’ (Butterworths, 1995) and ‘The Elderly Client Handbook’ (Law Society, 2nd edition 2000).