Care users need stronger human rights protections – Essex researchers contribute to key report

  • Date

    Fri 22 Jul 22

Elderly woman

Essex researchers have provided vital evidence to a report by the Parliamentary Joint Committee on Human Rights which warns that gaps remain in how vulnerable people are protected in care settings, leaving their human rights at risk of being breached.

The report published today, finds that mechanisms such as Do Not Attempt Cardio Pulmonary Resuscitation notices and Deprivation of Liberty Safeguards are often not applied correctly, meaning treatment can be wrongfully withheld or an individual’s liberty infringed. It calls on the Government to work with the Care Quality Commission (CQC) to ensure there is stringent oversight of how care providers implement safeguards designed to protect the human rights of care users.

The committee includes representatives from across the political spectrum and members from both the House of Commons and the House of Lords.

The report referred to evidence gathered by the Essex Autonomy Project, based at the University of Essex and led by Professor Wayne Martin from the School of Philosophy and Art History. The team found evidence that care home residents were denied access to hospital treatment during the COVID-19 pandemic because of the inappropriate application of Do Not Attempt CPR orders and that these orders influenced healthcare decisions outside their intended remit.

The report said: “Results of a survey conducted in 2021 by the Essex Autonomy Project, and shared with us as written evidence for this inquiry, showed that 55% of their respondents witnessed DNACPR notices being added without consultation, most often because of a blanket decision (28%) or a group decision (e.g. on basis of age or frailty, 25%). They also noted that a subset (17%) of survey participants reported that DNACPR notices, once recorded, were used to make other decisions as well. One respondent to their survey said that “some staff see DNR as ‘do not care’, or ‘do not seek any medical treatment.’” Another respondent to the same survey noted that DNACPR notices are wrongly perceived by some as being also about access to antibiotics, access to fluids, and to hospital treatment. They are only in fact about CPR and there should be no read across to other forms of treatment or medical response.”

The report noted Professor Martin had suggested there was a “training gap” in care settings in terms of human rights, a view supported by other expert evidence.

Responding to the report Professor Martin said: ““None of these issues are new, but we now have an opportunity for meaningful reform. New standards, guidance and training can better protect the human rights of care home residents.”

Chair of the Joint Committee on Human Rights, Joanna Cherry MP QC said: “Care users are some of the most vulnerable in our society and it is vital that the right mechanisms are in place to ensure that they receive appropriate care, accompanied by safeguards that recognise that, for some, the capacity to make informed decisions may be impaired. There also needs to be a careful balance that protects their human rights whilst allowing action to be taken to prevent a risk of harms.

“We are concerned that too often safeguards are not being applied correctly. Measures that should be tailored to individual needs, whether it concerns the right to a visit from a loved one or the question of whether someone should be resuscitated, are instead applied across a ward or age group. This is wrong and
should not happen.

“We have called on the Government to do more to ensure there is a water-tight framework in place to ensure that the treatment of care users is adequate and their human rights respected. The Government must also make sure that care providers are actually following applicable guidelines as they should.”

The report also raises concerns about the slow progress in securing visitation rights for care users. It warns that continued blanket restrictions are a needless risk to the mental and physical wellbeing of care users. It calls on the Government to establish a legal right for care users to nominate individuals for visiting rights. It also calls on the CQC to play a greater role in ensuring care providers are not needlessly blocking care users from seeing loved ones.

The Joint Committee finds that there is currently an imbalance in how human rights are protected in care settings. Where care is publicly funded or arranged, the Human Rights Act can be used directly to uphold the rights of care users, but that is not necessarily the case where care is privately funded. This means that individuals in the same care setting might have different human rights protections. It calls on the Government to consult on whether the protections of the Human Rights Act should be extended to those receiving care and support from all regulated providers.

Key findings of the report

Do Not Attempt Cardiopulmonary Resuscitation notices

Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) notices mean that if an individual goes into cardiac arrest cardiopulmonary resuscitation should not be attempted as it would be futile or not in the best interests of the patient. Concerns have been raised that notices are being applied to individuals based solely on their age or condition, and without adequately consulting the individual or their relatives. There are additional concerns that DNACPR notices have been wrongly applied, meaning that other treatments have been withheld.

The report notes that Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) must only be used to decide whether an individual receives cardiopulmonary resuscitation. Care users and their relatives or representatives should be adequately involved in DNACPR notices, with comprehensive record keeping, monitoring and review at an organisational level to ensure best practice is being observed. Notices should never be applied to groups of individuals or affect decisions about other treatment decisions.
It calls on the CQC to ensure that organisations involved in overseeing and applying DNACPR orders place care users at the centre of decision making, ensuring their human rights are protected.

Restrictive practices

The Joint Committee finds that restrictive practices, such as the use of chemical or physical restraints, should only be used where strictly necessary. Enforcing restrictive practices without good reason could amount to a breach of the prohibition of torture and inhuman or degrading treatment. The report notes particular concerns about their use for people with dementia or learning disabilities. It calls on the Government to work with the CQC and Ombudsman bodies to ensure that guidelines over its use comply with the requirements of human rights law.

Deprivation of Liberty Safeguards

There are concerns that people are being deprived of their liberty, where they are placed under continuous supervision and not free to leave, without adequate safeguards in place. It calls on the Government to work with regulators and stakeholders to ensure providers fully understand how the Deprivation of Liberty Safeguards framework should work and improve compliance with statutory requirements. It warns that the introduction of the new Liberty Protection Safeguards must not repeat the failing of the existing framework, it also calls for a firm timetable to be set for implementation so that unnecessary delays are avoided.

The report additionally calls for improved mechanisms for those who have been detained unlawfully or their representatives to challenge their treatment, including greater access to legal aid.