Local Authorities

Commissioning authorities

Local authorities must take into account their legal obligations, in particular their duties under section 6 of the Human Rights Act. These duties will apply not only in the direct provision of services but also in ensuring human rights standards are respected, protected and fulfilled through the processes for the commissioning and procurement of care services through to the final delivery of care services.

The National Care Home Contract for contracted out care for older people specifies that care providers must be compatible with the Human Rights Act. As a commissioning authority, however, local authorities retain a responsibility to ensure these human rights obligations are fulfilled.

The implementation of a human rights based approach means an awareness of the PANEL principles discussed in Section 1 of these materials:articipation,ccountability, ondiscrimination and equality, mpowerment of rights' holders and egality of rights. Of particular relevance to the commissioning and procurement of care services is the principle of participation.

A human rights based approach to social care means that people who use the services and their families and carers participate in its design and delivery. The involvement of communities increases the likelihood that the needs of the community will be met more effectively and thus contribute to achieving better social care. Furthermore, participation helps ensure that the social care system is responsive to the particular needs of individuals using care services.

Commissioning authorities may also want to consider how human rights standards can be linked to quality in the specifications, selection and award criteria of the procurement process.

By focussing on these particular considerations in the commissioning and procurement processes the human rights of people using services will be better respected, protected and fulfilled in line with duties under the Human Rights Act and international human rights legal obligations and standards.

Adult protection services

Adult protection services and the inter-agency Adult Protection Committees have an important role to play in upholding the human rights of adults at risk of harm. The legislation tables on the previous pages show the connections between the adult protection laws and human rights.

Care Regulators

As a statutory body the Care Commission and its successor must comply with the Human Rights Act in performing its regulation, inspection, and complaint handling functions.

The National Care Standards

Human rights are a natural fit with the National Care Standards and the system of inspection and regulation in Scotland. The Standards themselves are underpinned by human rights principles (dignity, privacy, choice, safety, realising potential, equality and diversity).

It can easily be shown where the National Care Standards directly relate to human rights standards. To take one example, protection under Article 8 of the Convention regarding the right to respect for private and family life, home and correspondence relates to the following extracts from the National Care Standards for Care Homes for Older People:

  • Standard 6 Support arrangements Development of a personal plan detailing needs and preferences

  • Standard 8 Making choices You can make choices in all aspects of your life

  • Standard 10 Exercising your rights You keep your rights as an individual

  • Standard 12 Lifestyle – social, cultural and religious belief or faith Your social, cultural and religious belief or faith are known and respected. You are able to live your life in keeping with these beliefs”

  • Standard 16 Private life You have the right to a private life”

  • Standard 17 Daily life You make choices and decisions about day-to-day aspects of your life and about how you spend your time”

Regulation of Care Award

The underpinning values of the Regulation of Care Award (ROCA) qualification for Care Commission Officers also reflects the human rights based approach promoted by these materials.

The values explored in ROCA specifically advise that

“in working with providers, inspectors will ensure respect for users’ basic human rights, especially the following:

a. the right of freedom of movement, free expression and to follow personal cultural, religious and spiritual beliefs

b. the right to express their views and to be heard

c. the right to rely on staff caring for them who are competent, suitable and fit to undertake the duties for which they are employed

d. the right to be safe and protected

e. the right to seek independent advice, help or treatment when required; and

f. The right to live their life independently whilst being treated with care and dignity.”

These materials are designed to assist you in the practical implementation of these values by applying a human rights based approach to the standards with which you are already familiar. The materials also build on this by showing how other rights which are not explicitly mentioned in ROCA – such as freedom from degrading treatment and the right to respect for private and family life – are relevant in care settings.

Human rights sit at the core of the care services you regulate. Daily decisions that care providers make such as staffing levels, medication, physical restraint, personal care and end of life decisions will all carry human rights implications, and applying a human rights based approach will assist in this decision making process.

Best practice human rights principles should also be kept in mind when undertaking a complaint handling role.

In particular the principles behind of Article 6 of the Convention and the right to a fair hearing are informative here. These include:

  • Right to an independent and impartial tribunal

  • Right to no unreasonable delay

  • Right to a reasoned judgment

  • Right to disclosure

  • Right to representation

  • Right to a hearing in one’s presence

  • Right to participate effectively at the hearing

  • Equality of arms