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Disclaimer: this is a study guide, not a definitive statement of law. Therapists should seek legal advice it the event of dispute or uncertainty. Do not rely on information given in this document.
The Human Rights Act came into force throughout the UK on 2 October 2000, incorporating the rights and freedoms guaranteed under the European Convention on Human Rights. The act enshrines in law certain rights for individuals (see below). The implications for social care and occupational therapy might be imagined to be slight, as most of the rights should already be enshrined in standards of good practice, but they can help to protect clients where standards are slipping and some interesting case law has emerged. A few examples are given below.
There are exceptions to most of the rights (torture excluded), so that the right to privacy might be waived in residential homes where the safety of the individual is at risk or the right to freedom might take second place in a mental health setting where the person would otherwise pose a danger to themselves or others.
The rights:
See full text of the Act.
The act applies to "public authorities", i.e. any organisation that carries out functions of a public nature. Health authorities and local authorities are obviously covered, and so are the care providers who act on behalf of those authorities. However, the Leonard Cheshire charity, a major provider of residential care homes, won a ruling that it is not a public authority (R v The Leonard Cheshire Foundation and HM Attorney General, ex parte Heather; Ward; Callin [2002]). Residents had brought the case to oppose the closure of a home which they argued would infringe their right to respect for private and family life and home (article 8). The court stated that the local authorities who commissioned the care were the public authority responsible for protecting the rights and not the charity.
The Act has also been successfully used to challenge certain aspects of the Mental Health Act. An example of this was the ruling that the burden of proof for keeping a patient under the Act should lie with the authorities, not the patient. Previously, patients had to prove to a tribunal that they were fit for release (see R (H) v Mental Health Review Tribunal, North and East London Region and another, 28 March 2001).
Article 8 was also used by a disabled woman to claim damages from Enfield council after being forced to live in a "wholly unsuitable" home due to failures of the social services and housing departments. She had been forced to live almost confined to her home and forced to sleep in the lounge with her husband and two children because of failure to adapt the home. Damages totalled £10,000. (see article in Enfield and Haringey Independent, 31st October 2002
A reflection the human rights implications of moving and handling practices can be found in November 2003's British Journal of Occupational Therapy [Mandelstam M (2003) Disabled People, Manual Handling and Human Rights. British Journal of Occupational Therapy 66(11):528-530]. BAOT/COT members can download it from the College of Occupational Therapists website (membership number required).
See also BASW's summary of the act
[click here for full text of the Act]
Please inform us of any errors or omissions you may have noticed or any new cases you hear about. Your help is needed to make this a useful and relevant resource.
[Last updated 7th October 2002. Author: Mike Griffin, OT, practising in community physical disability.]
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