What’s the consequence? Impunity and breaches of disabled people’s fundamental rights

by stevebroach

Two stories on social media this week reveal further systemic breaches of disabled and elderly people’s fundamental rights. Firstly, some excellent work by Andy McNicoll for Community Care shows widespread failure by local authorities to make the necessary court applications to authorise deprivations of liberty for disabled people living in the community. To me the most shocking aspect of Andy’s research was that at the relevant time there were over 50 councils who had made *zero* applications, despite those councils having identified over 6,000 cases where an application might be needed. It would seem that in all those 6,000 cases (and many others elsewhere) there is likely to have been a breach of Article 5 ECHR, the right to liberty.

The reasons for this sorry state of affairs have been expertly explored by Lucy Series – as Lucy writes the fundamental error was to exclude supported living placements from the scheme set up to deal with the consequence of the Bournewood judgment (HL v UK).

However what I’m interested in here is the consequences, not the cause, of this systemic violation of disabled people’s human rights. When I tweeted about the research yesterday a shocked social worker asked ‘how is that being followed up?’. And my answer was – I doubt it will be. Will the Secretary of State, the Care Quality Commission or any other official body do anything about this evidence? We shall see.

Similar thoughts came to mind this morning when the British Institute for Human Rights tweeted another of their case studies showing the practical difference human rights can make to the care and treatment of disabled and elderly people. This case study involved a challenge to a practice in a nursing home whereby:

several residents were effectively trapped in special ‘tilt-back’ chairs. The chairs were being used because they stopped people in the home from trying to get up, falling and hurting themselves.

Sadly, this meant many older people who could walk weren’t able to get up and out of the chairs. Instead they had to wait for staff to come and get them out of the chairs so they could go to the toilet or go and get something to eat.

Although I see cases like this every week if not every day, I was still shocked by this one. To me this isn’t just an example of poor practice, it is a blatant breach of those residents’ fundamental rights. Not simply the qualified right to respect for private life found in Article 8 ECHR, but also at least arguably the absolute rights to liberty and freedom from inhuman and degrading treatment found in Articles 5 and 3 ECHR.

BIHR report that through the intervention of a consultant who raised human rights concerns this practice was stopped; ‘Residents who could walk were no longer placed in the tilt back chairs and staff encouraged them to start using their walking skills again’. While this is obviously welcome, it begs the question – where is the remedy for those residents who suffered this practice for an unspecified period prior to the consultant’s intervention?

‘Impunity’ is an important concept in international human rights law. It refers to the impossibility, de jure (in law) or de facto (in fact) of bringing the perpetrators of human rights violations to account. The Council of Europe guidelines state that ‘Impunity arises where those responsible for acts that amount to serious human rights violations are not brought to account’.*

There is no question that we have impunity in law in this country in relation to disability rights. We have a legal framework which protects disabled people’s fundamental rights, albeit one that is patchy and imperfect. Cases such as Neary or ZH show that the courts are both willing and able to provide remedies in cases which come before them.

The real question is whether we have de facto impunity. Surely the test for this must be whether in the majority of cases where an obvious human rights violation takes place there is a clear and meaningful consequence, including a remedy for those affected. Will that test be met in relation to the 6,000 disabled people who experienced unauthorised deprivations of liberty in those 50 councils – or in relation to the elderly residents of the care home previously ‘trapped’ in their chairs? I have my doubts.

The barriers to a legal remedy in these cases are significant. First of all someone has to be motivated to bring a legal challenge – whether the person themselves, a friend, advocate or family member. They then need access to a specialist solicitor. Legal aid will have to be obtained (ever more difficult) or another way of funding the challenge identified. Do these barriers make it ‘impossible’ to get redress for a rights violation? In some cases, perhaps they do – and in all cases they make it extremely difficult.

Even if those hurdles are surmounted there is a very good chance that the claim will settle with perhaps an apology and a modest offer of compensation. Is this really an effective remedy from the perspective of both the person and the public interest?

Other routes to redress of course exist. Complaints can be made to Ombudsmen. Inspection bodies can inspect and take action. The Secretary of State and his officials can intervene. But will any of these make a difference in these and other similar cases?

One of the most difficult issues raised by disabled people and family members in the debate on the drafting of #LBBill was that of sanctions and accountability. While everyone recognised that getting the legal framework right mattered, many people simply assumed that it would often be ignored unless there were serious consequences.

So what are the options? Fining providers and public authorities? Managers and staff losing their jobs? Closing down or removing people from provision which fails to respect human rights (this is of course already done in the worst cases)?

I don’t know the answer. I do know however that where breaches are ongoing judicial review can be a real and effective remedy – and legal aid is at least still available in this area, subject to a means test.

So it seems to me that if we want to end de facto impunity in relation to breaches of disabled and elderly people’s human rights we need to take a much harder approach than we often see at present, with more frequent recourse to legal challenges (I know – lawyer in ‘use the law more’ shocker).

Just because practice is all pervasive in a setting or an area doesn’t make it right. If unlawful practice and rights abuses don’t stop the moment they are identified, is there a better option than immediate recourse to court? What other options do we have to avoid a situation of de facto impunity here in the UK when disabled and elderly people’s rights are violated?

*The Council of Europe’s guidelines define ‘serious human rights violations’ as ‘those acts in respect of which states have an obligation under the Convention, and in the light of the Court’s case law, to enact criminal law provisions’. This suggests that unless the treatment of disabled or elderly people constituted criminal conduct then violation of their rights without remedy would not constitute impunity – a principle I would challenge.