National Care Service: Charter and the Law

3. Equality, dignity and respect section

3.1 ‘You have rights to be treated without discrimination and in a way that supports you to have equal opportunities to other people’

3.1.1 The law does not directly confer rights to be treated equally. Rather it prohibits discrimination on certain grounds in particular situations. The Equality Act 2010 prohibits discrimination on the grounds of one of the protected characteristics it defines in certain situations, a number of which apply in a social care, social work and community health context.

3.1.2 In addition, the Equality Act 2010, section 149, provides for the Public Sector Equality Duty, which requires public authorities to have due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it. This involves having due regard, in particular, to the need to remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic, take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it, and encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

3.1.3 Article 14 of the European Convention on Human Rights (which is incorporated into domestic law by the Human Rights Act 1998) prohibits discrimination in the enjoyment of other Convention rights incorporated by the Human Rights Act 1998, with it being unlawful for any public authority to act in a way which is incompatible with the Convention rights.

3.1.4 Article 2 of the United Nations Convention on the Rights of the Child (which is incorporated into domestic law by the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024) provides that State Parties (which under that Act includes public authorities) shall respect and ensure the rights set forth in the Convention to each child within their jurisdiction without discrimination and shall take all appropriate measures to ensure that the child is protected against all forms of discrimination. Under the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 it is unlawful for a public authority to act, or fail to act, in connection with a relevant function in a way which is incompatible with the Convention requirements.

3.1.5 Although not a right in itself, in a mental health context, section 3(2) of the Mental Health (Care and Treatment) (Scotland) Act 2003 stipulates that where discharging functions under the Act “[t]he person shall discharge the function in a manner that encourages equal opportunities and in particular the observance of the equal opportunity requirements”. The persons referred to above include Scottish Ministers, the Local Authority, and Health Boards.

3.2 ‘You have rights to respect for your private and family life. This protects your physical and moral integrity and your right to make decisions about your own life. Public authorities like local councils and health boards must provide support in a way that respects these rights’

3.2.1 Article 8 of the European Convention on Human Rights (which is incorporated into domestic law by the Human Rights Act 1998) states everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, 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.

Private life is a broad concept which covers the physical and psychological integrity of a person and may “embrace multiple aspects of the person’s physical and social identity” (as described by the European Court of Human Rights).

3.2.2 Article 16 of the United Nations Convention on the Rights of the Child (which is incorporated in domestic law by the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024) states no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family or home.

3.3 ‘Public authorities like local councils and health boards must make reasonable changes that help to remove barriers to support for disabled people’

3.3.1 The Equality Act 2010, section 20 (2) to (5) states that when a disabled person is put at a substantial disadvantage in comparison with a persons who are not disabled due to:

a) A provision, criterion or practice of the public authority

b) A physical feature

c) An auxiliary aid not being provided

The public authority must take such steps as is reasonable to have to take to avoid the disadvantage.

3.4 ‘You have rights to not be treated in an inhuman or degrading way and to be protected from harm, neglect and abuse. You have rights to be safe in your home and your community, including if you live in a care home or other facility.’

3.4.1 Article 3 of the European Convention on Human Rights (which is incorporated into domestic law by the Human Rights Act 1998) protects from torture (mental or physical) and inhuman or degrading treatment or punishment. Public authorities must not inflict this sort of treatment and must protect individuals if someone is treating them in this way. If they know this right is being breached, they must intervene to stop it. The state must also investigate credible allegations of such treatment (including by third parties).

3.4.2 Article 8 of the European Convention on Human Rights (which is incorporated into domestic law by the Human Rights Act 1998) states everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, 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.

3.4.3 Article 19 of the United Nations Convention on the Rights of the Child (which is incorporated in domestic law by the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024) provides that State Parties (which under the Act includes public authorities) shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

3.4.4 Article 16 of the United Nations Convention on the Rights of the Child (which is incorporated in domestic law by the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024) states no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family or home.

3.5 ‘People who provide social care, social work and community health support have a right to be protected from harm.’

3.5.1 Article 3 of the European Convention on Human Rights (which is incorporated into domestic law by the Human Rights Act 1998) protects from torture (mental or physical) and inhuman or degrading treatment or punishment.

3.5.2 The Health and Safety at Work Act 1974, section 2(1) and (2) provides for general duties of employers to their employees. This includes ensuring as far as is reasonably practicable, the health, safety and welfare at work of employees including the provision and maintenance of a working environment for employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements.