Work in #socialcare &/or #mentalhealth is not an exercise in #HumanRights removal. The #law giveth, the law taketh away. #rights are not ours to withhold.
Tag Archives: human rights
Why all the fuss about human rights?
I’ve worked in care in one capacity or another since I first volunteered as an unemployed school-leaver in 1981. Over the last 30 odd years I’ve been privileged to see some amazing developments in the way that vulnerable people are treated by society and by the caring professions. I’ve met some incredible, inspiring people and watched in awe as people overcome seemingly insurmountable odds, sometimes as a result of the care they receive and sometimes in spite of it. It’s been and continues to be a fantastic career, witnessing human growth and potential that would have been impossible without this country’s extensive package of human rights protections.
That’s why, some years ago, long before Brexit I wrote this little PDF. It outlines just why I love the European Convention on Human Rights, not just in relation to care services but because of its benefits for society as a whole.
If you’re at all unsure why so many care workers and others fear for our rights post-Brexit please download ‘The convention‘ and see just what the fuss is about.
New seminars and training on human rights coming soon. It’s important for care workers to know what we risk losing. That way they have a chance to help keep our rights.
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Doing the rights thing
So many nationalists talk about how great UK is. They cite our history, particularly 20th century history and the post-war society they grew up in. And I agree – for all its faults, post-WW2 UK hasn’t been a bad place to grow up in.
Our emphasis on justice, compassion, tolerance and human rights has created a pretty cool place to live. We have education, health care, protection for workers, unemployed people and the sick and disabled. We have a reasonable justice system without barbarity and access to legal remedy for all. It’s true that recent ideologically driven austerity measures have definitely impacted negatively on most of these advantages. None the less most UK adults today grew up with a working set of rights and safeguards before recent governments began trying to remove them.
What seems odd to me is the way that, whilst extolling our nation’s virtues, these nationalists often want to remove the emphasis on rights, tolerance, representative democracy and justice that made modern UK society so good in the first place.
Why is that? I think it’s probably because they don’t quite get the reality of Human Rights and what they’re in place to achieve. For years now the media and certain politicians have distorted the public’s perception of human rights with a parade of half-truths and downright deceptions.
My solution is to develop a training pack, primarily for care workers but actually relevant across society to help show people what’s at stake as the UK prepares to leave the EU. There is a lot of talk about scrapping our human rights. I think we need to be very, very clear about just what that means – and about what we want to come next. Knowledge is power!
Please get in touch if you have any suggestions for topics to include, FAQs to prepare for or any other questions or comments about this new project.
Many thanks.
Stuart
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Human rights in the UK?
Everyone should read and understand this. We need the Human Rights Act and the European Convention on Human Rights. Without them this vicious tory government realky will be able to treat us all like expendable cattle.
We are more than just working stock for the moneyed establishment.
Those who cannot work are more than just burdens – they are people.
Don’t be fooled. Human Rights laws are there for a reason. We cannot afford to lose our HR protections.
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Privileged glimpses 25: Who put us in charge?
This series of blog posts first appeared a few years ago on a now defunct blog called ‘Care Training’. It was inspired by the training maxim of ‘making the unconscious conscious’. It is intended to take what really ought to be the most basic principles of health and social care and put them down on paper. The series isn’t only an exercise in stating the obvious though whatever the title might suggest. It’s actually intended as a philosophical foundation manual for workers and informal carers to help them get their care ‘on track’ and then to keep it that way.
The first of the Mental Capacity Act’s underlying principles is:
An assumption of capacity
This means that we need to begin by assuming that everyone we meet is capable of making this particular decision at this particular time unless we have reason to suspect otherwise. In other words that person is ‘Most people’ in relation to the ‘three types of legal status’ table below:
Three types of legal status
| Most people
Make their own decision |
Bournewood gap
Follow Mental Capacity Act 2005 |
Mental Health Act
Follow Mental Health Act 1983/2007 |
| People whose capacity to make the decision is not in doubt | People who are not detained under the MHA but who lack the capacity to decide | People who (because of a mental disorder) are deemed to present a risk to self, risk to other or are at risk through self-neglect. |
This might seem very obvious and reasonable (in fact it is) but it doesn’t sit too well with common practice in a number of care environments. Let’s look at an example.
When I was still a young man I worked as a care assistant in a Learning disabilities residential home. Looking back I can see a number of problems with the way the home was run but at the time, having come into a system that was already established, I thought that this was how learning disabilities establishments were supposed to operate. I didn’t know any better.
One of the fundamental mistakes I used to make related to the residents’ ability to make choices. This mistake covered all sorts of decisions from what to watch on the TV to whether or not they wanted to come on group outings to the local swimming pool.
The house was set in its own grounds in a beautiful part of Lincolnshire and the lawn and garden were nothing short of stunning. The home employed a full time groundsman to keep everything in good order and he did an excellent job. Consequently, many of the residents used to enjoy spending time sitting under the trees in the grounds or walking around the landscaped garden.
However this wasn’t always possible. You see, along with all the other staff there, I would take it upon myself to stop residents at the door and expect them to explain to me why they were safe to go outside. If I wasn’t completely satisfied then I would prevent them from doing so – this wasn’t difficult because the doors were always locked and only the staff had keys. Only if I was happy for them to leave would I let them go outside.
The problem was that this was the wrong way around. I emphasised the word let in bold for good reason. You see it wasn’t up to me to let people do anything.
We use the word ‘let’ a great deal in health and social care but that implies an authority we do not usually have. I can only let a person do something if I have the legal power to prevent them – and usually I don’t.
It wasn’t up to me to let people go outside into their own garden. They went because they had a right to and unless I had good reason to interfere with that they didn’t need my permission at all.
A more recent illustration of this comes from the N. Cornwall Learning Disabilities Partnership NHS Trust inquiry that took place in 2006. There were 40 referrals to the POVA list (now the vetting and barring list) and many of them were to do with staff preventing people from using areas that they had a right to without good reason.
Whenever we are tempted to take control of other peoples’ choices it’s useful to begin by asking ourselves:
“Who put me in charge?”
Unless you can demonstrate that the individual lacks the capacity to make this particular decision at this particular time then nobody put you in charge. The person has a legal right to make their choices whether we like it or not.
Even if the person lacks capacity (in which case you may very well be ‘in charge’) you will still need to act in their best interests and that doesn’t automatically mean doing what is best for the staff or for the relatives.
People have the right to occupy their own space, to make decisions about when they get up or go to bed, to choose who they spend time with and whether or not to involve themselves in activities. They also have the right to disagree with us and to ignore the preferences of family members just as you have. Your relatives have no right to tell you what to do (assuming you’re an adult) and the same is true for your service-user with capacity.
Who put us in charge?
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Privileged glimpses 7: What people say
This series of blog posts first appeared a few years ago on a now defunct blog called ‘Care Training’. It was inspired by the training maxim of ‘making the unconscious conscious’. It is intended to take what really ought to be the most basic principles of health and social care and put them down on paper. The series isn’t only an exercise in stating the obvious though whatever the title might suggest. It’s actually intended as a philosophical foundation manual for workers and informal carers to help them get their care ‘on track’ and then to keep it that way.
Just a quick post today. This one is as obvious as it gets.
What people say may not be what people mean
There are many reasons why people in health and social care settings don’t say what they mean and it’s worth taking a little time to think before deciding whether or not to take what they say at face value.
Here are just a few possibilities to consider…
People may be too frightened or insecure to tell the truth. Or they may know that what they have to say will be unpopular. Many would argue that fear of exposure and a basically unpopular message explains why people are often less than honest about their true intentions. The truth may be too problematic (or the other person’s reaction too scary) to admit to honestly.
The service-user who is always satisfied with the care we give them may genuinely be happy with what we do but, realistically speaking, the person who never feels dissatisfied is pretty rare. That’s why inspectors such as those from the CQC sometimes worry when an organisation receives no complaints at all. Are the service-users too intimidated to say what they actually mean.
There is a power imbalance between nurse, carer and service-user and it’s easy for people to be intimidated by that imbalance – even if it’s unintended. If it is intended, if the nurse is a bully for example then it’s even more of a problem.
If nobody in your service ever complains it’s a good idea to ask yourself why. You may want to look beyond their words and understand the fear that prevents them from being honest.
The other possibility I want to consider here is the ‘challenging behaviour’ strategy of taking people at their word even if you don’t think they’re being honest.
Sometimes people will tell you things they don’t mean because they have a hidden agenda. In those cases you may want to consider acting as if they’re being honest with you even though you think they may not. This more or less guarantees that the solution you give them, although appropriate for the problem they stated will be unlikely to match the subtext. Stick to the stated problem until they tell you what they really mean.
This means that over time they learn that it’s better to be clear and to be honest.
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The Convention 18: The right to freedom from discrimination
ARTICLE 14
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
As most people are aware many forms of discrimination are unlawful in British society as they are throughout much of the rest of the world. However the nature of discrimination (what it actually means) isn’t always so clearly understood. The confusion about what is and is not discrimination isn’t helped by the way that certain individuals or groups claim ‘discrimination’ when really they are simply failing to get their own way. A recent example of this involves Father Raniero Cantalamessa, Pope Benedict’s personal preacher who likened the current criticism of the Roman Catholic church to anti-semitism. Cantalamessa claimed that the current outrage at the Catholic church’s failure to protect children from paedophile priests is anti-catholic discrimination.
In fact nothing could be further from the truth.
What we see is arguably pro-Catholic discrimination in that the leaders of the church appear to be receiving preferential treatment. If the management of any other organisation had protected paedophiles from the law and knowingly continued to place them in positions of trust with vulnerable children they would be prosecuted. The ‘blind eye’ that the current Pope himself turned in the past would, according to UK law at least, result in prosecution and very probably a lengthy prison sentence. If there is any discrimination at all it is not anti-Catholic. It is pro Catholic.
The desire to protect children from abuse is not discrimination and such claims are merely an attempt to distract attention from the real issue – the repeated abuse of children by paedophile priests in the full knowledge of a hierarchy that was more interested in secrecy than in upholding the law. This would be a problem in any organisation, not just a Catholic one.
Criticising criminals for their abuse is fair comment. The reason for criticism of the church hierarchy is not their Catholicism, it is their criminal behaviour in shielding abusers from justice and continuing, consistently to place paedophiles in positions where they can repeat their abuses of vulnerable children.
We can see then that what does or does not constitute discrimination depends upon relevance.
It would be discriminatory to treat all Catholics, or even all Catholic clergymen as though they were child abusers. This is because Catholicism is not relevant to paedophilia per se. Not all Catholics are paedophiles and not all paedophiles are Catholic.
It is when we make unreasonable distinctions between people that we are guilty of discrimination. For example when we make assumptions about someone based upon characteristics that have nothing to do with the issue at hand. This sort of discrimination, based upon irrelevancies, is what happens when people make judgements based upon skin colour, religious affiliation, nationality, ethnicity, disability, profession or sexual preference.
Skin colour for example has nothing to do with trustworthiness and disability does not invalidate a person’s right to be treated with respect. In both cases, colour and disability, the ‘condition’ is irrelevant to the point under consideration.
However the fact that an individual belongs to a group that is regularly discriminated against does not mean that they can do no wrong. A gay man who assaults his neighbour in a dispute about a garden fence will still be prosecuted. But he will be prosecuted because of the assault. His sexuality is irrelevant. He may claim discrimination on the grounds of his sexuality but his claim will not be taken seriously by the courts because his sexuality is not relevant to the case at hand.
On the other hand a gay couple refused accommodation in a hotel or guest house would be supported under anti-discrimination legislation for exactly the same reason. Their sexuality is not relevant to their right to use services.
Similairly if I, when I was manager of a residential drug rehabilitation unit had to evicted an Asian man because of his use of illicit substances on the premises he could not then have claimed racial discrimination. Actually, anyone who knows me would understand how ludicrous such a claim against me would be but that’s not the point. The eviction would be because of the rules of the service which are applied equally to all service-users regardless of skin colour or racial type. Colour is simply irrelevant and therefore the decision to evict is not discriminatory – it is simply an appropriate response.
The basic ‘rule of thumb’ then for front line workers is to ask if the alleged discrimination is relevant. Is your action the result of the individual’s need or behaviour or is it motivated by the fact that they belong to a particular group.
If it’s because of individual circumstances and would be the same whatever subgroup the person belonged to then it’s probably not discrimination. I say probably not because there is the additional aspect of institutional discrimination that we will consider in a later post. If it’s because of the subgroup they belong to (eg Catholic, gay, disabled, Asian etc) then there’s a good chance you really are discriminating.
As ever ‘relevance’ is the key when deciding whether or not you’re being discriminatory.
The Human Rights Council recently expressed grave concern at discrimination & violence based on sexual orientation
Their concerns are mirrored by the Crown Prosecution Service here in UK who reported on prosecution rates for ‘hate crimes’ here.
About ‘The Convention’
This series of posts first appeared on Stuart’s blog in June 2011. It is not intended to be a comprehensive or even particularly authoritative reference guide to the ECHR. Rather it is a brief introduction to a much larger and infinitely more fascinating subject. You can download the entire series in PDF format here: https://stuartsorensen.wordpress.com/amj-freebies-downloads-and-services/
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The Convention 17: The right to effective remedy
There is little that needs to be said about article 13. All it really means is that each country must enact laws to ensure that European Convention rights are upheld. If they are not then enacted then aggrieved citizens can take their country to the European Court of Human Rights to sit in judgement in their particular case.
Appealing to Europe is expensive and time-consuming though and so most countries try to ensure that their own, domestic legislation reflects the ECHR. Here in UK that’s what the Human Rights Act 1998 is all about. It includes all the articles of the ECHR except for article 13. That’s because the government believes that article 13 is automatically upheld simply because the Human Rights Act 1998 exists. It provides effective remedy in itself and needs no further discussion.
ARTICLE 13 says:
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Human Rights Act 1998 also re-emphasises the duty of all UK courts to interpret the law in a way that is consistent with the ECHR when reaching a judgement. There is a ‘side option’ known as a ‘statement of incompatibility’ which allows the court to say that existing UK law cannot be interpreted in keeping with the ECHR and so pass it back to Parliament to review but this is rarely needed.
About ‘The Convention’
This series of posts first appeared on Stuart’s blog in June 2011. It is not intended to be a comprehensive or even particularly authoritative reference guide to the ECHR. Rather it is a brief introduction to a much larger and infinitely more fascinating subject. You can download the entire series in PDF format here: https://stuartsorensen.wordpress.com/amj-freebies-downloads-and-services/
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The Convention 16: The right to marriage
Are you married?
If not, do you plan to marry one day?
If so would you like to be free to marry the person of your choice?
What if you fell foul of the UK’s racial purity laws?
What if you fell in love with someone from a different ethnic group?
How does the prospect of imprisonment ‘grab you’?
Of course there are no ‘racial purity’ laws in UK. You are free to marry whomever you wish, regardless of their race, creed or colour. That’s good isn’t it?
Things weren’t always this way in Europe. During the Nazi occupation marriage was strictly managed according to racial values and characteristics. The German state took it upon itself to interfere in the reproductive rights of citizens in a number of ways based upon the prejudices of Nazism and the myth of Aryan superiority. That’s why article 12, ‘the right to marry’ (along with article 14 ‘freedom from discrimination’) are so important.
ARTICLE 12
Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right. Nobody can interfere with this right, especially if their objection is based upon arbitrary or prejudicial grounds.
In fact the term ‘civil partnership’ itself only came about so that a distinction could be made between religious marriage and state institution. The newspapers may talk about ‘gay marriage’ but the law does not.
Remember what we said about religious freedom – it’s a right so long as its expression does not interfere with the lawful rights of others. In this case Ms Ladell’s actions very definitely impeded the rights of others and also constituted discrimination on grounds of sexuality. That’s why she was sacked and why she lost her appeal. This may seem harsh but to restrict gay relationships on religious grounds is no more reasonable than to restrict inter-racial marriage on ideological grounds.
About ‘The Convention’
This series of posts first appeared on Stuart’s blog in June 2011. It is not intended to be a comprehensive or even particularly authoritative reference guide to the ECHR. Rather it is a brief introduction to a much larger and infinitely more fascinating subject. You can download the entire series in PDF format here: https://stuartsorensen.wordpress.com/amj-freebies-downloads-and-services/
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The Convention 15: The right to association
We have already established that the European convention is a response to the Nazi regime of Adolf Hitler and the creation of the Third Reich. What isn’t quite so well known is the way that German ‘National Socialism’ attempted (and in large part succeeded) in preventing people from associating with each other. The idea was that if people couldn’t come together in large enough groups they wouldn’t be able to oppose the Nazi party’s dominance of the country.
On the 27th February 1933 an arson attack on Berlin’s Reichstag (the German equivalent of the UK’s houses of Parliament) was blamed on German Communists. Most people believed at the time that the fire was actually set by the Nazis themselves as an excuse to demonise their most prominent political rivals. It certainly gave them an excuse to outlaw not only the communist party but also any other associations that might threaten their all encompassing control of German society.
On February 28th, the very next day, Hitler passed the ‘Defensive Measures Act’. He told aides that:
“The German people will have no sympathy with lenience. Every communist official will be shot where he is found. The communist deputies must be hanged this night. Everything connected with the communists is to be settled. No more indulgence will be afforded the social democrats or the Reichsbanner.”
Adolf Hitler (February 1933)
“My measures will not be crippled by any judicial thinking. I don’t have to worry about justice! My mission is to destroy and exterminate, nothing more!”Herman Goering (March 1933)
The Defensive Measures Act (1933) restricted:
Personal liberty;
Free expression of opinion;
Assembly and association;
Postal, telegraphic and telephonic communications;
Domestic privacy;
Property ownership.
This opened the door for mass arrest and summary execution of political ‘undesirables’ from communists to liberals, democrats and ‘middle of the road’ political activists of all persuasions.
In direct response to this Article 11 concerns itself with freedom of association and ideology. In combination with other articles (predominantly articles 5, 8, 9 & 10) it protects our right to form associations and to meet and discuss our ideas with others.
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. this article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
Since the early days of the Convention the courts have produced a stream of judgements providing guidance in balancing the right of free association with the need to protect society and the rights and freedoms of others. One definite principle is that mere difference of opinion is not likely to be sufficient grounds to prevent association. A recent case involved the Associated Society of Locomotive Engineers and Firemen (ASLEF).
ASLEF vs UK clarified that a union cannot expel a member simply for belonging to a political organisation unless other problems also apply. The case concerned a far right BNP activist belonging to the traditionally left wing ASLEF union. That is because association is not usually anything more than a private affair. It is possible for the law to intervene in associations where there are reasonable grounds to do so based upon past or likely behaviour. It is also possible in the right circumstances for particular groups or associations to be declared illegal per se but again there needs to be good reason. It ought to be more than merely a difference of opinion.
So thanks to the European Convention on Human Rights you and I have the right to meet and discuss our grievances against the prevailing government. We can form pressure groups or political parties and we can even take our grievances out onto the streets so long as we respect the lawful rights of others to go about their business.
Ironically the extreme far right groups most opposed to the convention are the ones benefitting most from it (and the ones most likely to remove it if ever they achieved power themselves). But that’s not such a problem. The Convention affords these groups the right to meet and to demonstrate but it also prevents them from removing that liberty from others. That’s the price we pay for liberty – we have to accept the right of others to oppose (for others) the very liberty they enjoy themselves. As Voltaire allegedly said:
“I disagree with what you have to say, but I will
fight to the death to defend your right to say it.”
About ‘The Convention’
This series of posts first appeared on Stuart’s blog in June 2011. It is not intended to be a comprehensive or even particularly authoritative reference guide to the ECHR. Rather it is a brief introduction to a much larger and infinitely more fascinating subject. You can download the entire series in PDF format here:
Mind The Care Training 