Article 8 and tea without sugar

The Care Quality Commission and the Equality and Human Rights Commission  have a Memorandum of Understanding to facilitate them working together to promote a human rights approach to social care regulation.  They have issued some new guidance for CQC inspectors to help them understand and promote equality and human rights compliance in care settings.  I've just had a quick look through the guidance, and I am really impressed by the approach they are taking.  Not so long ago I was bemoaning the untapped potential of Article 8 in social care on the UK Human Rights blog.  The CQC and EHRC guidance makes clear that even the "small things" have potential human rights implications, as this example from this document (pdf) shows:

The following stories illustrate an approach to care and support based on equality and human rights, and the difference it can make. There are further examples in the equality and human rights guidance for each of the key sections of the essential standards.

Tea without sugar (Article 8)

"Placing my mum, who had severe dementia, into a care home was one of the most difficult decisions of my life. I was desperate to make sure the staff treated her as the person I knew – my mum. I remember the day I moved her in, telling the manager all the things my mum liked and disliked. She especially disliked sugar in her tea. The first time I visited, the staff were serving afternoon tea. I noticed they put two sugars in every cup. I said to the member of staff, “My mum doesn’t take sugar”, to which she replied, “It doesn’t matter – she won’t know anyway”."

The absence of dignity and respect in the above example is in stark contrast with the following example, in which the preferences of a woman in a care home were sensitively noted so that her care was exactly as she wanted:

"I wear a light nightdress. I like a cup of tea before bed and when in bed please close the door. I would prefer to be washed and dressed by a female carer."

I think this is a great example (apparently from this 2009 report on social care) that really highlights how dehumanising even some of the smallest acts in care can be.  The reality is that it is highly doubtful anyone would (or could) bring legal proceedings on the back of how many sugars are in their tea, but if the regulator takes a human rights approach it can help reinforce their message even on issues usually quite remote from formal law.  I suspect the issue around gender preferences for carers may not be so very far from our courts though, and it's good to see that this is being discussed in a human rights context.

The guidance also discusses issues around restraint, and possible engagement of Articles 8, 5 and 3.  It states:

Where a person has been subjected to restraint, Article 8 (the right to private and family life) will be engaged. Consideration will need to be given as to whether the action taken was justified under Article 8 (that is that the reason for using the restraint falls within the grounds set out in Article 8, for example, for the protection of the person’s health and that the action taken was necessary to achieve this aim and was proportionate to that particular situation). There may be cases where the restraint used does not comply with the requirements under Article 8. It may also amount to a deprivation of liberty, thereby engaging Article 5 (right to liberty). In some cases the circumstances in which the restraint was used (such as the level of force used, its duration and impact on the person concerned and the age, disability or state of health of the person) may give rise to a breach of Article 3 (freedom from torture and inhuman or degrading treatment or punishment).

This is particularly timely in the context of the pending case to determine whether the use of restraint in C v A Local Authority [2011] breached Articles 3 and 8 (previously discussed here).

Hopefully the guidance will give inspectors better awareness of how a human rights approach could be used in social care, and the confidence to challenge poor practices.  It shows that people within CQC and EHRC understand how important these issues are, and the examples they give chime with many of the human rights issues that come up repeatedly in my own research and experience.

However, before we get too carried away with this rose-tinted view, it's obviously true that the effectiveness of this guidance will only be as good as the training that accompanies it and the operational effectiveness of CQC's overall delivery.  But I do see signs of change within CQC on the inspection frequency issue, and hopefully the Department of Health will release the desperately needed cash to help them increase inspection frequency and responsiveness to concerns.  This guidance will hopefully assist in inspection methodology.  As an aside, I would like to see the CQC produce much better guidance on monitoring the deprivation of liberty safeguards, in fact a future post might be dedicated to what I'd like to see such guidance include...  Well, one step at a time eh?