By Debbie le Quesne

Pledge to tackle gap in law over care clients’ human rights

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We’re big on human rights in the care industry – it’s at the very heart of personalised care. Client choice and honouring those choices in the best ways possible is the bedrock of modern care plans.

So you can imagine how shocked I was to discover that once a person needs care in a community or residential setting “there is no guarantee that the Human Rights Act will apply,“ according to former minister of care services Paul Burstow.

The good news is that what he describes as a “gap in the law” has been discussed in parliament as the care bill went through its final stages in the Commons.

“I am very pleased to say that the minister [Norman Lamb, I presume] has now accepted the importance of this point,” says the now-back bench MP, who lost his job in a Cabinet cull.

Writing in the Guardian he adds: “Changes have been promised which should ensure that, when the bill becomes law, Human Rights Act protections will be extended to enhance protections for some of our most vulnerable citizens. This is a cause for celebration: it has been a long fought campaign, and tribute is due to the Equality and Human Rights Commission – among others – who have done so much to champion the issue.”

In a care bill report last year, Mr Burstow recommended that “wherever a person is officially cared for, if the care is regulated by the Care Quality Commission, then that individual should have the protection of the Human Rights Act.“

He adds: “Without this change, the law is confused and unfair. Currently, some people are covered, others not. Take two people being cared for in the same nursing home: one had their place arranged by their family, the other by the council. Only the one whose care was arranged by the council is protected by the Human Rights Act.

“So a resident of a care home may find they have no security of tenure, and can be evicted very easily. It is well known that the shock of being forced to move out of a home can contribute to someone’s death. The Human Rights Act can afford protection in such cases, but only if the council arranged the care.


“Worse still, if you are cared for in your own home by a private or third sector agency – even if the council arranged it – human rights protection does not currently apply at all.”

This anomaly is truly outrageous and all credit to Mr Burstow for his diligence in campaigning to make things fair.

It’s scary these things creep under the radar, but what I find most disturbing is Mr Burstow’s revelation that a cross party vote in the House of Lords defeated the government last year, voting to amend the care bill to iron out this anomaly. However, the Ministry of Justice was adamant that the act should not apply to private care arrangements, and the amendment was subsequently overturned at committee stage in the Commons last month.

Thank goodness this is now being addressed with the minister committed to consider the issue further, and to work with MPs and officials to reach a consensus on the issue.


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