National Care Service: Human Rights and the Charter

6. International human rights law

This section includes information about some of the key international human rights that relate to social care, social work and community health. These rights are not included in domestic law at present. This means that you cannot enforce these rights through UK or Scottish courts. Scotland has a responsibility to protect, respect and fulfil these rights in devolved areas because the UK has signed and agreed to them.

6.1 Right to the highest attainable standard of physical and mental health (Article 12 of the ICESCR)

What does this right mean?

This right is sometimes referred to as the ‘right to health’.

The United Nations say that the right to health is an inclusive right, covering a wide range of things that help us to lead healthy lives ^[14].

The ‘right to health’ is not the same as the right to be healthy. Health is influenced by wider factors such as an individual's biological make-up. This is why it is called the right ‘to the highest attainable standard of physical and mental health’ rather than a right to be healthy ^[15].

The ‘right to health’ includes availability, accessibility, acceptability, and quality of health facilities, goods and services ^[15].

A ‘right to health’ also appears in other international human rights treaties, including:

• the International Convention on the Elimination of all forms of Racial Discrimination (ICERD), as part of Article 5 (right to public health and medical care)
• the Convention on the Rights of Persons with Disability Article 25 (right to the highest attainable standard of health for disabled people)
• the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) - Article 12 (equality in healthcare) and Article 14 (adequate health care facilities for rural women)

How this right might apply to social care, social work and community health

As stated above, the United Nations say that the right to health is an inclusive right. This is explained as meaning that it is not just a right to health services. It is also about other factors such as access to safe water and adequate sanitation, an adequate supply of safe food, nutrition and housing, and access to health-related education and information ^[14].

Ways that public authorities, such as local councils and the NHS, could respect, protect and fulfil this right may include:

• ensuring people have access to essential medicines
• ensuring people have access to information about health
• making sure that people are not discriminated against when accessing support for their health ^[16]
• making sure that people can participate in decisions related to health ^[15]

How does the Charter reflect this right?

• the Charter say that you should expect your support to be provided in a way that recognises your experiences and describes examples of things you should expect to happen that will make sure you are treated fairly

• the Charter describes ways in which people involved in your care should work with you to understand how they can support you

• the Charter describes the duties of local authorities to assess your care and support needs and decide if they need to arrange any services for you

• the Charter signposts you to the Charter of Patient Rights and Responsibilities for information about your rights to accessing and using NHS services,

6.2 Right to an adequate standard of living, including food and housing (Article 11 of ICESCR)

What does this right mean?

The United Nations says that everyone has a right to an adequate standard of living for themselves and their family, including adequate food, clothing and housing, and to the continuous improvement of living conditions ^[17].

They say that the right to housing should be seen as the right to live somewhere in security, peace and dignity ^[18].

The Equality and Human Rights Commission say that the minimum requirements for adequate housing under the ICESCR are:

• security of tenure
• adequate lighting, heating and sanitation
• habitability
• location from which health and education services are accessible, including the provision of adequate infrastructure
• cultural adequacy ^[19]

The Equality and Human Rights Commission also say that under the ICESCR, food and water should be:

• available in sufficient quality and quantity to satisfy dietary needs
• free from adverse substances
• culturally acceptable
• accessible, both economically and physically ^[19]

How this right might apply to social care, social work and community health

This right is closely linked to the ‘right to health’.

Examples of ways that public authorities, such as local councils and the NHS, could respect, protect and fulfil this right may include:

• ensuring people receiving care get help with eating and drinking if they need it
• providing choice of meals and mealtimes in social care and health residential settings such as care homes
• ensuring food provided is culturally acceptable, for example by providing Halal, Kosher or vegetarian options
• ensuring food and water are available when needed throughout the day and night - this includes putting it within reach of a patient or resident with a mobility impairment
• providing help with eating and drinking, if people need this ^[19].

How does the Charter reflect this right?

• the Charter describes ways in which you should expect support to be provided, so that you are treated fairly
• the Charter describes duties of local authorities to assess your care and support needs, and decide if they need to arrange any services for you

6.3 Right to live independently and be included in the community (Article 19 of the CRPD)

What does this right mean?

This sets out the rights of disabled people to live and participate in the community and have the same choices as other people. The article covers two concepts - the right to live independently and the right to be included in the community.

The Committee on the Rights of Persons with Disabilities provides the following explanations of these concepts ^[20]:

Independent living: Independent living means you have everything you need to help you have control over your life and make decisions about your life. They give these examples of what this includes:

• somewhere to live
• support to communicate
• support to care for yourself
• relationships with other people
• transport
• sexual and reproductive rights
• the chance to get involved in religious or social activities

It means you decide things such as who you live with, what you eat, when you go to bed and what you have in your home. These decisions let you be who you want to be.

Living independently does not mean doing everything on your own. It means making choices about what you want and having the support to put these choices into action.

Being included in the community: This means having a good life and spending time with other people, using the services they use and getting involved in the things they do. This includes voting and getting involved in politics.

How this right might apply to social care, social work and community health

To fulfil this right, the UN says that disabled people should be ‘provided with all necessary means to enable them to exercise choice and control over their lives and make all decisions concerning their lives.’ ^[21]

Social care, social work and community health support can be very important to help to respect, protect and fulfil this right.

For example this could include:

• support to access community activities
• support that enables people to continue to live in their own home
• support to enable people to return home, if they are currently living in an institution
• support to build people’s skills to live independently
• providing choice about where and with whom to live
• ensuring decisions about how support is provided are made by disabled people as far as possible
• providing support to make decisions ^[21]

How does the Charter reflect this right?

• the Charter says that you should be supported to look after the relationships that are important to you and that you should be supported to be part of your community
• the Charter says that local authorities have a duty to assess care and support needs and decide if they need to arrange any services for you
• the Charter provides information about self-directed support, supported decision making and independent advocacy, which can help to promote independent living

6.4 Right to equal recognition before the law (Article 12 of the CRPD)

What does this right mean?

The Equality and Human Rights Commission explains that this right means that disabled people should have the same legal rights as non-disabled people, in all aspects of life ^[4].

The CRPD states that everyone with a disability should enjoy ‘legal capacity on an equal basis with others in all aspects of life.’ Legal capacity is the ability to hold rights and to make decisions that are respected and capable of being enforced under the law.

This is explained as meaning that even if a person has a disability that makes it difficult to make decisions they still have legal capacity and should still be able to exercise it but perhaps may need support to do this.

It means that disabled people should be provided with support to make decisions.

Where people are supported to make decisions, then safeguards should be in place to make sure that this support reflects a person’s rights, will and preferences, so far as practicable. Support must be free from conflict of interest and undue influence ^[22].

How this right might apply to social care, social work and community health

Examples of situations in social care and community health settings where this right could be relevant may include:

• day to day decisions about a person’s daily routine or support
• decisions made under the Adults with Incapacity (Scotland) Act 2000 about a person’s care or support
• decisions made under the Mental Health (Care and Treatment) (Scotland) Act 2003 about a person’s care or treatment

Please note that these are illustrative examples of times when decisions may be made in the context of social care and health. Decisions made under the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Adults with Incapacity (Scotland) Act 2000 will still be made in accordance with these laws and will apply the tests and principles set out in these laws. The rights set out in international human rights law, such as the rights to participate in decision-making, operate alongside these legal bases for intervention. These human rights do not change the legal basis for intervention.

Examples of ways that public authorities, such as local councils and the NHS, could respect, protect and fulfil this right may include:

• assuming that people can make decisions with support
• providing people with the information they need, in an understandable format
• supporting people to communicate, including recognising the diverse and different ways that people might communicate
• providing people with support for decision making, such as independent advocacy
• supporting people to make an advanced plan
• building confidence and skills of disabled people, so that they can realise their rights ^[22]

How does the Charter reflect this right?

• the Charter says you have rights to be as involved as possible in decisions about your support and how it is delivered, rights to be given information about the support that is available to help make decisions and rights to involve a member of your support network in planning your support
• the Charter provides information about Self-Directed Support
• the Charter provides information about supported decision making including an illustration of steps to follow to get support when making a decision
• the Charter provides information about substitute decision-making and when this is legally possible in Scotland
• the Charter provides information about independent advocacy, rights to advocacy in certain situations and how to access independent advocacy support