Taking human rights seriously in the National Care Service

Cathy Asante reflects on the need for meaningful engagement with human rights within the National Care Service.

The Scottish Human Rights Commission has long expressed concerns that the existing social care system does not deliver people’s human rights in practice. It is a stark case of great promise and many of the right words about human rights, but a very different experience for those receiving social care.

We welcomed the Feeley Review and its recommendations for a radical shift in adult social care provision towards one with human rights, equity and equality at its heart. It may not have covered detailed content on human rights and exactly how they would be achieved but it embraced important elements which would represent a real shift.

The National Care Service proposals mention human rights a number of times but sadly they don’t take them much further. These proposals are the point where human rights need to be carefully engaged with. They need to be at the core, the foundation from which the structures are built. They cannot be tacked on after the fact if the impact on rights is to be any different.

The NCS presents a huge opportunity to realise human rights. Firstly, human rights guidance is there for the taking. The fundamental importance of the right to independent living (Article 19 of the Convention on the Rights of Persons with Disabilities) is very clearly indicated by Disabled People’s Organisations and in the purpose of social care articulated by the Feeley Review. The right means that “individuals with disabilities are provided with all necessary means to enable them to exercise choice and control over their lives and make all decisions concerning their lives”. It also means that empowering, individualised support which must be seen as a right, not social care.

The match is too clear to miss. What is more, we can go much further than that in understanding what the right means, its specific components, and what it requires of government and public authorities.  The UN provides detailed guidance on all these aspects here (this link will take you away from our website). We have broken this down in our response to the NCS proposals and pointed out the connections to various elements of the system. There are clear opportunities to build the right to independent living into commissioning and procurement, eligibility and assessment, complaints and redress. Equally, they must be explicitly embedded in regulatory frameworks and workforce arrangements. This seems a clear case where a human rights based approach provides a guide; a clearer, more objective way to achieve the goals of a National Care Service.

Secondly, this is the time. There is, in fact, a need to start doing this exercise now. Scotland is well on the way to incorporating into Scots law a range of human rights which apply to social care, including the right to independent living. We should have a Human Rights Bill within the current parliamentary session which will come with duties on public authorities to ensure that they are realising rights such as independent living. If the system has been rebuilt, and so fundamentally rebuilt as creating a NCS, but the components of the right have not been built in, it will have to be retrofitted to meet these duties, which will make it much harder for an overworked system and staff to meet their duties.

One of the purposes of incorporation is to provide accountability, to address the gap between rhetoric and reality. Incorporating rights like independent living in a Human Rights Bill will allow for clear tracking of whether duties are being met, and provide routes of challenge if not. This is equally important in the development of the NCS. Gaps in accountability were a key strand of the Feeley Review and our own monitoring, highlighting problems both before and during the pandemic. While aspects of accountability are considered in the proposals, these primarily relate to the governance structures within and around the NCS and its accountability to Scottish Ministers. Significant aspects of accountability for individual social care decisions remain unaddressed.

There are certainly positives to be taken from the proposals. Had this exercise taken place ten, or even five, years ago, it is much less likely there would have been a stated intention to take a human rights based approach. But a HRBA means little if it does not explicitly engage with and act on the requirements of the relevant rights. As the Feeley Review pointed out, human rights must be consistent, intentional, and evident. This is a matter of process, certainly, but there is a real purpose at the heart of it. If the process takes the time to consider what it is told about the steps necessary to realise rights, then people should actually enjoy them in practice, without having to fight for them, without even noticing how it happened.

Taking a true HRBA would, no doubt, mean there is difficult work to be done. There are some real challenges posed by the right to independent living, not least its abundantly clear instruction to get rid of institutions of any kind. These are exactly the sort of challenges that have to be thought about at the outset so that careful plans can be made to achieve them in a realistic manner. And of course, the meaningful involvement of those who receive social care will be instrumental in reaching real world solutions that deliver rights in practice.

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