Changes in relation to the Coronavirus Act 2020

Under the Act, the local authority is not obliged to carry out detailed assessments of people’s care and support needs as required previously under the Care Act. However, they will still be expected to respond as soon as possible (within a timeframe that would not risk breaching an adult’s human rights) to requests for care and support, consider the needs and wishes of people needing care and their family and carers and make an assessment of what care needs to be provided.

The local authority continues to have a duty to meet an adult’s needs, where a failure to do so would breach their human rights under the European Convention on Human Rights (ECHR). These include, for example, the right to life under Article 2 of the ECHR, the right to freedom from inhuman and degrading treatment under Article 3 and the right to private and family life under Article 8. For more information see Annex B: Guidance on streamlining assessments and reviews, Care Act easements: guidance for local authorities (Department of Health and Social Care).

RELEVANT INFORMATION

Equality and Human Rights, Care Quality Commission

Equally outstanding: Equality and human rights – good practice resource (CQC)

Social Work and Human Rights: A Practice Guide (BASW)

August 2020: A link was added to Social Work and Human Rights: A Practice Guide published by the British Association of Social Workers, as above.

1. Introduction

This chapter outlines the main points of the Equality Act 2010, and also how it relates to working with people with care and support needs, including safeguarding adults. The Act ensures there is consistency in what a local authority does to provide services in a fair environment and comply with the law. This includes all the people who use its services, their family and friends and other members of the public, staff, volunteers and partner agency staff.

2. Equality Act 2010

The Equality Act references ‘protected characteristics: all of which must be considered when implementing safeguarding procedures (see also Section 4.2, Protected characteristics). The Act covers both direct and indirect discrimination against people with these characteristics. These are:

  • age;
  • disability;
  • gender reassignment;
  • race;
  • religion or belief;
  • sex;
  • sexual orientation;
  • marriage and civil partnership;
  • pregnancy and maternity.

A local authority’s commitment to equality and diversity means that every person supported by it has their individual needs comprehensively addressed. They will be treated equally and without discrimination. This is regardless of any protected characteristics or another aspect that could result in them being discriminated against. The local authority is also committed to protecting individuals’ human rights. Failure to make reasonable adjustments in the care of a certain group with a protected characteristic (for example, a learning disability) may violate the Equality Act. It should have a process by which it considers how to promote equality.

3. Commitment to Equality, Diversity and Human Rights

The local authority should express its commitment to equality and diversity by:

  • respecting the ethnic, cultural and religious practices of people who use its services and making practical provision for them to be observed as appropriate;
  • reassuring people who use its services that their diverse backgrounds enhance the quality of experience of everyone who lives and works in any service provided by it;
  • protecting people’s human rights – treating them and their family and friends, fairly and with respect and dignity;
  • accepting adults who use its services as individuals;
  • supporting people to express their individuality and to follow their preferred lifestyle, also helping them to celebrate events, anniversaries or festivals which are important to them;
  • showing positive leadership and having management and human resources practices that actively demonstrate a commitment to the principles of equality and diversity;
  • developing an ethos throughout its services that reflects these values and principles;
  • expecting all staff to work to equality and diversity principles and policies and to behave at all times in non-discriminatory ways;
  • provide training, supervision and support to enable staff to do this;
  • having a code of conduct that makes any form of discriminatory behaviour unacceptable. This applies to both staff, people who use services and their family and friends, which is rigorously observed and monitored accordingly.

3.1 Human Rights

See also Appendix 1: Human Rights Legislation

‘Respecting diversity, promoting equality and ensuring human rights will help to ensure that everyone using health and social care services receives safe and good quality care.’ (Care Quality Commission)

The Care Quality Commission employs the commonly agreed ‘human rights principles’ in their inspection frameworks. These are sometimes called the FREDA principles:

  • fairness;
  • respect;
  • equality;
  • dignity; and
  • autonomy (choice and control).

These principles and standards should be at the heart of planning and delivery of care and in any required safeguarding processes involving adults with care and support needs and their family and friends. The local authority should also encourage and support its staff to develop knowledge and skills and, where relevant, provide organisational leadership and commitment to achieve human rights based approaches.

The local authority should encourage positive practice and a learning culture that promotes human rights. Staff must take swift action if they think someone’s human rights are being breached and speak to their line manager or designated adult safeguarding lead.

4. Guidance

4.1 Types of discrimination

All staff involved in the safeguarding process should be familiar with the following types of discrimination.

  • Direct discrimination occurs when a person is treated less favourably than others in similar circumstances on the grounds of race, colour, national or ethnic origins, sex, marital status, sexuality, disability, membership or non-membership of trade union, ‘spent convictions’ of ex-offenders, class, age, political or religious belief.
  • Discrimination by association applies to race, religion or belief, sexual orientation, age, disability, gender reassignment and sex. This is direct discrimination against someone because they associate with another person who possesses a protected characteristic (see Section 4.2, Protected characteristics below).
  • Perception discrimination is against an individual because others think they possess a particular protected characteristic. It applies even if the person does not actually possess that characteristic.
  • Indirect discrimination occurs when a condition or requirement is imposed which adversely affects one particular group considerably more than another.
  • Harassment is defined as unwanted, unreciprocated and / or uninvited comments, looks, actions, suggestions or physical contact that is found objectionable and offensive. Harassment is particularly liable to occur as part of sexual or racial discrimination.
  • Victimisation occurs when an employee is treated badly because they have made or supported a complaint or raised a grievance under the Equality Act, or because they are suspected of doing so. People are not protected from victimisation if they have maliciously made or supported an untrue complaint.

4.2 Protected characteristics

Under the Equality Act 2010 these are as follows.

  • Age: Where this is referred to, it refers to a person belonging to a particular age (for example 32 year olds) or range of ages (for example 18 – 30 year olds).
  • Disability: Under the Act, a person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. The Act includes a protection from discrimination arising from disability. This states it is discrimination to treat a disabled person unfavourably because of something connected with their disability.
  • Gender reassignment: A transsexual person is someone who proposes to, starts or has completed a process to change his or her gender. The Act does not require a person to be under medical supervision to be protected – so a woman who decides to live as a man but does not undergo any medical procedures would be covered. It is discrimination to treat transsexual people less favourably because they propose to undergo, are undergoing or have undergone gender reassignment than they would be treated if they were ill or injured.
  • Marriage and civil partnership: In England and Wales marriage is not restricted to a union between a man and a woman and includes a marriage between a same-sex couple. Same-sex and mixed-sex couples can also have their relationships legally recognised as ‘civil partnerships’. Civil partners must not be treated less favourably than married couples (except where permitted by the Act). The Act protects employees who are married or in a civil partnership against discrimination.
  • Pregnancy and maternity: Pregnancy is the condition of being pregnant or expecting a baby. Maternity refers to the period after the birth. Protection against maternity discrimination is for 26 weeks after giving birth, and this includes treating a woman unfavourably because she is breastfeeding.
  • Race: Race refers to a group of people defined by their race, colour, and nationality (including citizenship) ethnic or national origins.
  • Religion or belief: Religion has the meaning usually given to it but belief includes religious and philosophical beliefs including lack of belief (for example atheism). Generally, a belief should affect life choices or the way a person lives for it to be included in the definition. In the Equality Act, religion includes any religion. It also includes a lack of religion.
  • Sex: Both men and women are protected under the Act.
  • Sexual orientation: Whether a person’s sexual attraction is towards their own sex, the opposite sex or to both sexes. The Act protects bisexual, gay, heterosexual and lesbian people.

Appendix 1: Human Rights Legislation

See also Equality and Human Rights Commission 

  1. Human Rights Act 1998 Overview

The Human Rights Act 1998 (HRA) lays down the fundamental rights and freedoms to which everyone in the UK is entitled. The rights set out in the European Convention on Human Rights (ECHR) are incorporated in the HRA. It sets out people’s human rights in different ‘articles’, which are all taken from the ECHR. They are:

  • Article 2: Right to life;
  • Article 3: Freedom from torture and inhuman or degrading treatment;
  • Article 4: Freedom from slavery and forced labour;
  • Article 5: Right to liberty and security;
  • Article 6: Right to a fair trial;
  • Article 7: No punishment without law;
  • Article 8: Respect for private and family life, home and correspondence;
  • Article 9: Freedom of thought, belief and religion;
  • Article 10: Freedom of expression;
  • Article 11: Freedom of assembly and association;
  • Article 12: Right to marry and start a family;
  • Article 14: Protection from discrimination in respect of these rights and freedoms;
  • Protocol 1, Article 1: Right to peaceful enjoyment of property;
  • Protocol 1, Article 2: Right to education;
  • Protocol 1, Article 3: Right to participate in free elections;
  • Protocol 13, Article 1: Abolition of the death penalty.

Human rights law applies to public bodies and other organisations carrying out functions of a public nature. A number of these articles relate to working with adults with care and support needs, in particular Articles 2; 3; 5; 8.

The HRA can be breached in three ways by public bodies if they:

  • inflict explicit physical abuse or allow neglect of a person;
  • intervene in a person’s life’s unlawfully and disproportionately;
  • fail to intervene to protect a person from being abused or neglected by other persons.

2. Articles 2, 3, 5 and 8

2.1 Article 2 Right to Life

Article 2 applies in health and social care situations and requires an independent investigation into some deaths – coroner inquests – and may involve a breach of human rights with the state or public organisations implicated.

2.2 Article 3 Inhuman and Degrading Treatment

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Degrading treatment would occur if it “humiliates or debases an individual showing a lack of respect for or diminishing his or her human dignity or arouses feelings of fear, anguish, or inferiority capable of breaking and individuals moral and physical resistance.” Pretty -v- UK [2002] 2FC 97

Article 3 is breached most frequently when public bodies carry out or are responsible for abusive care and treatment; that is allowing or ignoring actions when they should not have done so.

There is a positive duty under Article 3 for a public body to intervene when abuse is performed by one private individual against another person.

3. Article 5: Deprivation of Liberty

People who lack mental capacity are one of the categories when people can be deprived of their liberty (see Mental Capacity chapter and Deprivation of Liberty chapter). Legal procedures are set out in the Mental Capacity Act 2005 (MCA) and the Mental Health Act 1983 and should be followed. If they are not adhered to, it may lead to a breach of Article 5.

A derivation of liberty under the MCA describes a best interest decision made in regard to a person who lacks mental capacity to decide about care, treatment or living arrangements. Such deprivations must be legally authorised under the provisions of the MCA (sections 4A-4B) or by order of the Court of Protection.

4. Article 8: Respect for private and family life, home and correspondence

Article 8 protects a person’s right to respect for their private life, their family life, their home and correspondence (for example, letters, telephone calls and emails).

4.1 Private life

A person has the right to live their life privately without government interference. This is a broad concept as interpreted by the courts, and covers areas such as:

  • sexual orientation;
  • lifestyle choices;
  • how someone chooses to look and dress;
  • the right for someone to control who sees and touches their body. In health services, for example, staff cannot leave someone undressed in a ward, or take a blood sample without the person’s permission;
  • the right to develop a personal identity;
  • to make friendships and other relationships;
  • a right to participate in essential economic, social, cultural and leisure activities. In some circumstances, public bodies, such as the local authority, may need to help someone enjoy their ability to participate in society;
  • the media and others being prevented from interfering in someone’s life.
  • personal information (including official records, photographs, letters, diaries and medical records) being kept securely and not shared without the person’s permission, except in certain circumstances (see Data Protection Act 2018 chapter).

4.2 Family life

People have the right to enjoy family relationships without interference from government. This includes the right to live with their family and, where this is not possible, the right to have regular contact. This includes couples who are not married, between an adopted child and adoptive parent and a foster carer and fostered child.

If a local authority makes an unjustified intervention in the life of person lacking mental capacity it may also breach Article 8- London Borough of Hillingdon v Neary [2011] EWHC 1377 (COP)

4.3 Home life

Everyone has a right to enjoy their existing home peacefully. Public bodies, therefore, should not stop a person from entering or living in their home without very good reason. They also cannot enter it without the person’s permission.

A right to home life does not mean, however, a right to be given housing.

4.4 Restrictions to Article 8

There are times when public bodies can interfere with someone’s right to respect for private and family life, home and correspondence. In such situations, the authority must be able to show that such action is lawful, necessary and proportionate in order to:

  • protect national security;
  • protect public safety;
  • protect the economy;
  • protect health or morals;
  • prevent disorder or crime; or
  • protect the rights and freedoms of other people.

Article 8 is not an absolute right. Interference with private life and family life is legally permissible but must be justified within the terms set out above.

A breach of Article 8 would occur if interventions are taken which are:

  • inconsistent with the relevant law;
  • consistent with the law but disproportionate and therefore unnecessary; or
  • for a purpose other than the criteria listed above.

5. Article 10 Freedom of Expression

Article 10 is the freedom to hold opinions and to receive and impart information and ideas without inference from the State. This right is not absolute but subject to several provisos. Restrictions can only be justified if they are for a specific purpose, for example:

  • public safety;
  • the prevention of disorder or crime;
  • the protection of health and morals;
  • the protection of the reputation or rights of others;
  • preventing the disclosure of confidential information.

The Care Act guidance warns local authorities against “abusive interventions that risk breaching the adult’s right to family life if not justified or proportionate“ Care and Support Statutory Guidance Department of Health and Social Care paragraph 14.98).