Tag: Joint Committee on Human Rights

Government changes to Mental Capacity Act threatens human rights of vulnerable citizens


Under the Conservative government, applications for the Deprivation of Liberty of citizens have soared. (Source: Court of Protection hub.) 

In 2014, a Supreme Court judgment significantly widened the definition of deprivation of liberty, meaning more people were subsequently considered to have their liberty deprived. There was a ten-fold increase in the number of deprivation of liberty applications following the judgment. Services struggled to cope, deadlines were “routinely breached” and the Law Commission decided that the system should be replaced. 

Law Commissioner Nicolas Paines QC said the Deprivation of Liberty Safeguards were designed at a time when fewer people were considered deprived of their liberty and now it was “failing” people it was set up to protect.

“It’s not right that people with dementia and learning disabilities are being denied their freedoms unlawfully,” he said.

“There are unnecessary costs and backlogs at every turn, and all too often family members are left without the support they need.”

Over the last eighteen months, the Law Commission – a statutory independent body created by the Law Commissions Act 1965 to keep the law of England and Wales under review and to recommend reform where it is needed – has been reviewing the framework that is called Deprivation of Liberty Safeguards (DoLs) which is put in place when a person who lacks capacity is placed in a care home.

Deprivation of Liberty, which is defined in part of the Mental Capacity Act 2005, is there to ensure that there are checks and balances for the person placed in care, that decisions are made in their best interest and that an independent advocate can be appointed to speak on their behalf in these decision making processes.

The Commission made recommendations to change the law, following public consultation. The recommendations included:

  • Enhanced rights to advocacy and periodic checks on the care or treatment arrangements for those most in need.
  • Greater prominence given to issues of the person’s human rights, and of whether a deprivation of their liberty is necessary and proportionate, at the stage at which arrangements are being devised.
  • Extending protections to all care settings, such as supported living and domestic settings, therefore removing the need for costly and impractical applications to the Court of Protection.
  • Widening the scope to cover 16 and 17 year olds and planned moves between settings.
  • Cutting unnecessary duplication by taking into account previous assessments, enabling authorisations to cover more than one setting and allowing renewals for those with long-term conditions.
  • Extending who is responsible for giving authorisations from councils to the NHS if in a hospital or NHS healthcare setting.
  • A simplified version of the best interests assessment, which emphasises that, in all cases, arrangements must be necessary and proportionate before they can be authorised.

However, the Law Commission recognised that many people who need to be deprived of their liberty at home benefit from the loving support that close family can provide. These reforms, which aimed to widen protections to include care or treatment in the home, were designed to ensure that safeguards can be provided in a simple and unobtrusive manner, which minimises distress for family carers.

Importantly, the Commission also recommended a wider set of reforms which would improve decision making across the Mental Capacity Act. This is not just in relation to people deprived of liberty. All decision makers would be required to place greater weight on the person’s wishes and feelings when making decisions under the Act.

Professionals would also be expected to confirm in writing that they have complied with the requirements of the Mental Capacity Act when making important decisions – such as moving a person into a care home or providing (or withholding) serious medical treatment. 

The government responded and put forward proposals for changing the Mental Capacity Act. However, though this new legislation has been worded carefully, its effect will be to risk the removal of key human rights; it also ignores the entire concept of best interests and has put decision making power over people’s liberty and rights in the hands of organisations and their managers with a commercial interest in decisions and outcomes.  

Any statutory scheme which permits the state to deprive someone of their liberty for the purpose of providing care and treatment must be comprehensible, with robust safeguards to ensure that human rights are observed. 

In July 2018, the government published the Mental Capacity (Amendment) Bill, which if passed into law, will reform the Deprivation of Liberty Safeguards (DoLS), and replace them with a scheme known as the Liberty Protection Safeguards (although the term is not used in the Bill itself).

The Bill draws on the Law Commission’s proposals for reforming DoLS, but generally does not address some of the wider Mental Capacity Act reforms that the Law Commission suggested. Proposed reforms around supported decision making and best interests are not included, for example, and these omissions are very controversial.

In a statement accompanying the proposals the government claims that £200m per year will be saved by local authorities under the new scheme, though the increased role of the NHS and independent sector providers will lead to increased costs elsewhere.

The new responsibilities being imposed on care homes, Clinical Commissioning Groups (CCGs) and hospitals will need some thought, resources and training.

Members of the House of Lords have already warned that the Bill to reform the law on deprivation of liberty does not adequately secure the rights of people subject to restrictive care arrangements. In Parliament’s first debate on the Mental Capacity (Amendment) Bill on 16 May this year, peers questioned several elements of the legislation. 

The Liberty Protection Safeguards are designed to provide a much less bureaucratic system than DoLS for authorising health and social care arrangements that involve a deprivation of liberty to which a person cannot consent.

The proposed Bill has been widely criticised because it contains insufficient safeguards and is not fit for purpose in its current form. It requires serious reconsideration and extensive revision.

applications for DoLs

The vast majority of both home care and residential care in England is now provided by private companies. Both the quality of care in adult social care and the terms and conditions of the workforce have declined over the past two decades as a result of privatisation. 

The Department of Health’s review of Adult Social Care in 2015/16 discussed the introduction of red tape reduction options in non-statutory areas of DoLS applications, in the private sector, and concluded that these had been ‘exhausted’.

The review report (page 30) says: “As such, the Department has funded the Law Commission (as the experts in law reform) to perform a fundamental review of DoLS “with a view to minimising pressures on care providers.” 

That must not come at the expense of safeguarding adults from exploitation for private profit.

In October 2017, the Prime Minister also commissioned a review of the Mental Health Act 1983, seeking to address concerns about how the legislation is currently being used. 

The government called for an Act in step with a ‘modern mental health system’, giving special attention to rising rates of detention and the disproportionate number of people from black and minority ethnic backgrounds being detained under the Act. Terms of reference for the review are available to view online. The review was tasked to appraise existing practice and evidence, formulating recommendations to improve legislation and/or practice in the future. 

The chair of the review is Simon Wessely.  He said “The Mental Health Act goes to the core of the relationship between the individual and the state.

“It poses the question: ‘When is it legitimate to deprive someone of their liberty, even when they have done nothing wrong?’ It sets rules that require professionals to judge if a mentally ill person poses a risk to themselves or others, and hence needs to be detained in order to safely receive treatment. It tries to strike a fair bargain with the detained person, giving them safeguards like second opinions and tribunals to ensure due process.

Reviewing the Act isn’t just about changing the legislation. In some ways that might be the easy part. The bigger challenge is changing the way we deliver care so that people do not need to be detained in the first place. In my experience it is unusual for a detention to be unnecessary – by the time we get to that stage people are often very unwell, and there seems few other alternatives available.

“But that does not mean this was not preventable or avoidable. The solutions might lie with changes to the legislation, but could also come from changes in the way we organise and deliver services. It would also be naïve to deny that much wider factors, such as discrimination, poverty and prejudice, could be playing a role.”

Wessely said his final report will make recommendations that require ‘significant’ new investment in the sector. However the government is looking to save money.

Wessely has played a notorious key role in the demedicalisation of  myalgicencephalomyelitis / chronic fatigue syndrome (ME/CFS) research. Serving as an advisor to the hugely controversial PACE trial, Wessely has defended the study of these illnesses, and the proposed treatment regime of CBT and graded exercise, stating “this trial was a landmark in behavioral complex intervention studies.” Wessley’s purely psychological approach to these physiological illnesses has been widely criticised, he has been accused of “unsupported conclusions derived from faulty analyses.” 

In 1988 the public water supply in Camelford in England was accidentally contaminated with aluminium sulfate. Wessely published a paper in 1995 playing down the effects of the pollution and suggesting ‘significant psychological factors’ were involved. The government formally and unreservedly apologised in 2013, 25 years later, to those whose health was affected by the water supply contamination. 

Things Wessley has said about ME/CFS include “The worst thing to do is tell them to rest”, “exercise is good for these patients” and  “[Welfare] Benefits can often make patients worse”.  See Notes on the involvement of Wessely et al with the Insurance
Industry and how they deal with ME/CFS claims .

I’m not confident that either the stated aims or in the outcome of this ‘independent’ review. The government have already amended the Mental Capacity Act, removing Practice Direction 9, which provided safeguards for people with degenerative illnesses and brain injury in the event of the proposed withdrawal of nutrition and hydration by doctors (See British Medical Association proposals deemed passive ‘euthanasia by stealth’ for disabled people with degenerative illnesses).

See also: Independent review of the Mental Health Act: interim report

The Law Society’s condemnation of the government’s Mental Capacity (Amendment) Bill 2018

The Law Society has issued a rather damning briefing on the Mental Capacity (Amendment) Bill 2018 that moved to a Lords committee stage in early September.

The Society says that the Bill is not fit for purpose: “While agreeing that simplification is needed and acknowledging that there are resource constraints, these constraints are “insufficient justification for not implementing fully the safeguards recommended by the Law Commission.” 

The Briefing also sets out six recommendations for change, reflecting what the authors feel should be the principles underpinning the new framework and why they are concerned that the Bill does not meet those principles, as it includes:

  • an already overly complex scheme being further complicated by a replacement scheme which instead of placing the cared-for person at the centre of the process, significantly dilutes and even removes the existing protections for them
  • the risk of increased burdens on local authorities who will bear ultimate responsibility for mistakes and poor implementation rather than building on the learning from the problems with DoLS and retaining those elements that have been effective whilst removing those which are unnecessary and bureaucratic
  • the cared-for person will not be at the centre of the process but side-lined with decisions being made without proper or even basic protections
  • the removal of the invaluable role of Best Interests Assessors and Relevant Person’s Representatives would leave vulnerable people without protection from unnecessary detention.

You can read the Law Society’s full Briefing here: Parliamentary briefing: Mental Capacity (Amendment) Bill – House of Lords committee stage (PDF 196kb).

Junior health and social care minister Lord O’Shaughnessy opened the debate at the Bill’s second reading in the House of Lords by saying the Liberty Protection Safeguards (LPS) would be less burdensome than DoLS on people, carers and local authorities, saving the latter an estimated £160m a year.

He said it would do this by making consideration of restrictions on people’s liberties a part of their overall care planning and eliminating repeat assessments and authorizations. However, peers from across the House of Lords agreed that several aspects of the bill risked weakening safeguards for people deprived of their liberty.

Labour peer Lord Touhig, vice-president of the National Autistic Society (NAS), voiced concerns about the rights of autistic people under the bill’s proposals, insisting that many of the problems with the existing system had not been addressed.

He cited, as particularly problematic, the removal of the best interests assessment currently provided under DoLS, which ensures that arrangements to deprive a person of their liberty are in the individual’s best interests, necessary to protect them from harm and proportionate to the likelihood and seriousness of that harm.

Under the LPS, the equivalent requirement would be to establish that the arrangements are ‘necessary and proportionate’, one of three criteria that must be met for a LPS authorisation, the others being that the person lacks capacity to consent and is of ‘unsound mind’.

Touhig said: “The new criteria risk losing sight of what is best for the individual and what the individual wants.

“Let us be wary of enacting legislation that pays scant regard to the individual, in particular an individual who is perhaps the most vulnerable in society.”

Liberal Democrat peer Baroness Barker highlighted problems with the ability of bodies authorising LPS arrangements to rely on historic assessments of mental capacity, which may have been carried out for other purposes.

She said: “There is a danger that we might end up with decisions being made about a person’s capacity to make one decision which rests on information that was gathered for a wholly different purpose. That would not be right.”

Under the new title, ‘Liberty Protection Safeguards,’ the proposals mean that the Deprivation of Liberty Safeguard is removed from the Mental Capacity Act 2005, with a new administrative scheme for authorising arrangements when it comes to the deprivation of liberty.

In the Bill it says that the person responsible for decision making should ‘reasonably believe’, action to deprive someone of liberty is necessary to prevent ‘serious deterioration.’ One problem is that there is no guarantee in place that ensures a sharp focus on ensuring decisions are made in the best interest of  vulnerable individuals. It is also important to ensure the new legislation allows for deprivation of liberty to be a very last resort.

There is also nothing in the Bill that explores what training will be made available to  acting mental capacity professionals and where the costs of this will fall.

While the new system aims to remove the problems associated with getting authorisation when moving between a care home and hospital setting will be welcomed, whether this places new pressures on the sector will also need some consideration. It is therefore expected that the debate will consider the cost of new arrangements, with close attention being paid to the £200m a year the government project the system will save local authorities.

The government’s recent amendment is regressive and the changes, instead of looking after people’s best interests, appear to have become a cost-cutting exercise that can only lead to people’s human rights being removed.

In summary, key features of the Liberty Protection Safeguards (LPS) include:

  • Like DoLS (but contrary to the Law Commission’s suggestion) they start at 18. There is no statutory definition of a deprivation of liberty beyond that in the Cheshire West and Surrey Supreme Court judgement of March 2014 – the acid test.
  • Deprivations of liberty have to be authorised in advance by the ‘responsible body’
    • For hospitals, be they NHS or private, the responsible body will be the ‘hospital manager’.
    • For arrangements under Continuing Health Care outside a hospital, the responsible body will be the local CCG (or Health Board in Wales).
    • In all other cases – such as in care homes, supported living schemes (including for self-funders), the responsible body will be the local authority.
  • For the responsible body to authorise any deprivation of liberty, it needs to be clear that:
    • The person lacks the capacity to consent to the care arrangements
    • The person is of unsound mind
    • The arrangements are necessary and proportionate.
  • To determine this, the responsible body must consult with the person and others, to understand what the person’s wishes and feelings about the arrangements are.
  • An individual from the responsible body, but not someone directly involved in the care and support of the person subject to the care arrangements, must conclude if the arrangements meet the three criteria above (lack of capacity; unsound mind; necessity and proportionality).
  • Where it is clear, or reasonably suspected, that the person objects to the care arrangements, then a more thorough review of the case must be carried out by an Approved Mental Capacity Professional.
  • Where there is a potential deprivation of liberty in a care home, the Bill suggests the care home managers should lead on the assessments of capacity, and the judgment of necessity and proportionality, and pass their findings to the local authority as the responsible body. This aspect of the Bill has generated some negative comment, with people feeling that there is insufficient independent scrutiny of the proposed care arrangements.
  • Safeguards once a deprivation is authorised include regular reviews by the responsible body and the right to an appropriate person or an IMCA to represent a person and protect their interests.
  • As under DoLS, a deprivation can be for a maximum of one year initially. Under LPS, this can be renewed initially for one year, but subsequent to that for up to three years.
  • Again, as under DoLS, the Court of Protection will oversee any disputes or appeals.

The new Bill also broadens the scope to treat people, and deprive them of their liberty, in a medical emergency, without gaining prior authorisation.

A critical summary of changes from Law Commission proposals

Although the Bill is based on the proposals produced last year by Law Commission following a government-commissioned review of the law on deprivation of liberty in care, the government has not included several of the commission’s key proposals in the Bill.

Those in government working on the bill had “selectively picked” from the Law Commission’s proposals in place of accepting the “whole package of measures” that had been created to produce “a robust defence” for individuals.

Among Law Commission proposals that have been omitted are the application of the LPS scheme to 16- and 17-year-olds, reforming the best interests test under the Mental Capacity Act 2005 to place a greater weight on people’s wishes and feelings and reforming section 5 of the Mental Capacity Act to restrict the availability of the defence from liability for care staff acting in relation to a person whom they reasonably believe lacks capacity to consent to the actions concerned. 

Some amendments have already been tabled to the Bill by Labour shadow health minister Baroness Thornton. These would apply the reforms to people 16- and 17-year-olds and specify that the provisions must be read in a way which is compatible with Article 5 of the European Convention of Human Rights, which secures the right to liberty.

With several questions regarding the Bill and the government’s decision to stray from the Law Commission’s proposals, it is expected that there will be more challenges.

The changes include:

  • The Commission’s original reference to necessity/proportionality is no longer tied specifically to risk of harm/risk to self, but simply, now, necessity and proportionality; 
  • The Law Commission’s proposed tort of unlawful deprivation of liberty (actionable against a private care provider) has gone; 
  • The LPS ‘line’ of excluding the LPS from the mental health arrangements has been changed, and the current status quo (i.e. objection) as regards the dividing line between the MCA/MHA in DOLS is maintained.

Lord O’Shaughnessy appeared to address this fact in his final comments during the second reading, saying the government would “reflect on” whether changes could be made.

“It has been clear from this debate that there is still much work to be done to provide the right kind of reforms that we all want to see,” O’Shaughnessy said.

Some amendments have already been tabled to the bill by Labour shadow health minister Baroness Thornton. These would apply the reforms to people 16- and 17-year-olds and specify that the provisions must be read in a way which is compatible with Article 5 of the European Convention of Human Rights, which secures the right to liberty.

The first day of the Lords Committee stage of the Mental Capacity (Amendment) Bill took place on 5 September. The Hansard transcript can be found here and here.

‘A backward step’

Sarah Lambert, head of policy and public affairs at the National Autistic Society (NAS), reiterated the arguments of those inside the House of Lords, saying: “NAS has substantial concerns that the bill, as drafted, does not put autistic or other individuals, who lack capacity, at the centre of decisions about their care.”

“Firstly, the bill moves away from the current position, where decisions should be made in someone’s ‘best interests’ and so risks losing sight of what is best for the individual, or what that individual wants.”

“Even though someone may lack capacity to make a decision about their living arrangements, their preferences or wishes should be a central factor in any decision about their lives. This makes it a backward step in protecting the rights people who lack capacity to consent to their care.”

“We will be working with members of the House of Lords and MPs as the bill passes through Parliament to make sure substantial amendments are made to secure the rights of autistic people and others.”

The Bill is so contentious as it does, in places, significantly depart from the recommendations of the Law Commission. Furthermore, the Joint Committee on Human Rights (JCHR) provided a report on the Law Commission’s proposals in July, and this report raised other issues that will need to be considered by Parliament.

One issue highlighted is the importance of establishing a clear definition of “deprivation of liberty” so that Article 5 (of the Human Rights Act) safeguards are applied to those who truly need them. The JCHR recognised that deprivation of liberty is an evolving Convention concept rooted in Article 5; the arising difficulty is how this is interpreted and applied in the context of mental incapacity. 

The report says: “Parliament should provide a statutory definition of what constitutes a deprivation of liberty in the case of those who lack mental capacity in order to clarify the application of the Supreme Court’s acid test and to bring clarity for families and frontline professionals. Without such clarity there is a risk that the Law Commission’s proposals will become unworkable in the domestic sphere.”

Another problem raised is that at present, the Legal Aid Agency can refuse non-means tested certificates for challenges to DoLS where there is no existing authorisation. The current system has produced arbitrary limitations on the right of access to a court. Legal aid must be available for all eligible persons challenging their deprivation of liberty, regardless of whether an authorisation is in place, particularly given the vast number of people unlawfully deprived due to systemic delays and failures, according to the JCHR.

There is also concern raised over the term “of unsound mind”, little understood and arguably more stigmatising. The JCHR has recommended that “further thought be given to replacing ‘unsound mind’ with a medically and legally appropriate term.”

The report concludes: “DoLS apply to those with a mental disorder. LPS will apply to persons of ‘unsound mind’ to reflect the wording of Article 5. We recommend that further thought be given to replacing “unsound mind” with a medically and legally appropriate term and that a clear definition is set out in the Code of Practice.

“The interface between the Mental Capacity Act (MCA) and the Mental Health Act (MHA) causes particular difficulties. Deciding which regime should apply is complex, and causes the courts and practitioners difficulties. The Law Commission proposes to maintain the two legal regimes: the MHA would apply to arrangements for mental disordersthe LPS would apply to arrangements for physical disorders. Inevitably, problems will continue to arise at the interface between these two regimes. We are particularly concerned by two issues.

“Firstly, this proposal requires assessors to determine the primary purpose of the assessment or treatment of a mental or physical disorder–this is difficult where persons have multiple disorders. Secondly, we are concerned that there would be essentially different laws and different rights for people lacking capacity depending upon whether their disorder is mental or physical. We consider that the rights of persons lacking capacity should be the same irrespective of whether they have mental or physical disorders.”

The Law Commission’s Recommendations made an attempt to include protection for a person’s Article 8 rights (of the European Convention on Human Rights: right to a family and private life) within the proposed amendments to the Mental Capacity Act by specifying a list of applicable decisions that require a written record of decision making (including any decision regarding covert medication and contact restrictions).

The Bill makes no reference to this however (despite the government accepting this part of the proposal in their response), focusing only on Article 5 rights. This is likely to be of great concern to many campaigners and stakeholders and therefore may become a pertinent issue in Parliament. In the meantime, the current law on Article 8 authorisations and covert medication remains in place.

The current DOLS framework requires a best interest assessor to determine whether a deprivation of liberty is in a person’s best interests. The Amendment Bill, however, requires no consideration of best interests, only requiring that the arrangements are ‘necessary and proportionate.’

Although this is partly is line with the Law Commission’s proposals that the LPS should remove the focus on best interests to move away from substituted decision making (in line with the Convention on the Rights of Persons with Disabilities), the Bill contains no explanation of what is meant by ‘necessary and proportionate’ or how these should be assessed. It is expected that concern will be raised in Parliament regarding the removal of best interests from the LPS and the lack of guidance surrounding necessity and proportionality.

The Bill will affect the fundamental human rights of hundreds of thousands of people with conditions such as dementia, learning disability and brain injury.

Commenting on the Bill Sue Bott CBE, Deputy CEO Disability Rights UK said:

I am concerned with the contents of this Bill which takes the rights of disabled people backwards. 

“There is nothing more serious for an individual than a decision to deprive them of their liberty yet, as it stands, this Bill will make challenging such decisions difficult and costly with little independent oversight and no commitment to taking the views of the individual into account. 

“I hope members of the House of Lords will, through amendments, be able to radically improve the Bill.”

Among the concerns highlighted by Disability Rights UK are:

  • The very least people, who are detained, need is information about why that decision has been made and what their rights are – there is no provision for this in the Bill
  • The Bill makes access to justice worse than the current system in not providing for non-means tested legal aid
  • There is no provision for the ‘cared for’ person to participate in court proceedings regarding their own liberty
  • Contains offensive and out-of-date language such as ‘unsoundness of mind’
  • Too much power is being given to care home managers to decide about people being deprived of their liberty
  • The Bill moves UK law even further away from the UN Convention on the Rights of People with Disabilities by not providing for supported decision making and for the wishes and feeling of the person to be taken into account.
  • The Bill in its current form is not supported by professionals in this area. 

The right to life and state compliance with Article 2 (ECHR)

The past five years have been challenging in terms of health outcomes in the UK, they add. For example, spending on health and social care year on year has increased at a much slower rate than in previous years, while outcomes in a large number of indicators have deteriorated, including a very rapid recent increase in the numbers of deaths among mental health patients in care in England and Wales. The government has a duty and a role to provide specific care for people experiencing mental health conditions at a time of vulnerability. That role must comply with Article 2, which:

  1. Imposes an obligation on the State to protect the right to life.
  2. Prohibits the State from intentionally killing.
  3. Requires an effective and proper investigation into all deaths caused by the State.
  4. Requires the State to take appropriate steps to prevent accidental deaths by having a legal and administrative framework in place to provide effective deterrence against threats to the right to life. 

The Policing and Crime Act 2017 came into effect to amend the Coroners and Justice Act 2009 and relieved coroners of the duty to hold an inquest into every death where the deceased was subject to a Deprivation of Liberty Safeguards authorisation or was deprived of their liberty through provisions in the Mental Capacity Act 2005. Coroners’ inquests into unnatural deaths involving health and social care organisations are on the increase. 

Where a DOL is in force, the State has effectively curtailed the liberty of the patient; as such when the patient dies then the death is equivalent to a detention in custody. Article 14 of the Convention prohibits discrimination in the enjoyment of the Convention rights. This means that the State must ensure that the right to life of people with mental health conditions is given equal protection to that of other people.  

There have been a number of  other legal developments that change the way decisions about life-prolonging treatments are made, in addition to the recent court judgments and the government’s radical withdrawal of the Court of Protection’s Practice Direction 9E which addresses protections concerning serious medical treatment.

The direction was effectively abolished by the Ministry of Justice  and the changes came into effect last December. The Court of Protection in English law is a superior court of record created under the Mental Capacity Act 2005. It has jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves. 

One consequence of this is the British Medical Association’s recent proposals in response to legal test cases in which judges ruled that qualified NHS staff and officials no longer required a court’s permission to withdraw artificial nutrition and hydration from those patients who are incapacitated and unable to communicate or feed themselves.

The Supreme Court justices’ decision in July supported the right of doctors to withdraw life-sustaining nutrition on their own authority, provided they had the explicit permission of the patient’s family or, where no family existed, medical proxy. If there is a disagreement and the decision is finely balanced, an application should still be made to the Court Of Protection. 

Changes to protections were introduced via secondary legislation – a negative resolution statutory instrument – there was very little parliamentary scrutiny. Furthermore, as the instrument is subject to negative resolution procedure no statement regarding implications in relation to the European Convention on Human Rights was required from government ministers, nor was public consultation deemed necessary. An Impact Assessment has not been prepared for this instrument. 

The fact that the UK government had already made amendments to safeguarding laws to accommodate these proposals, which took effect last December, and now plan to make it easier to remove people’s liberty under the Mental Health Act without public consultation, has caused deep unease. In the latest proposed changes to the Mental Health Act, the government seems to think it is appropriate to consider restrictions of people’s liberties as part of their overall ‘care package,’ and approach which is not compatible with human rights.

Changing legislation isn’t going to improve the lives of people with mental illness.  Improving mental health services depends on funding, the right number of well-trained staff and the right resources to meet the needs of patients, their families and carers.

More information on concerns about the Bill can be found here

You can read the most recent debate about the Mental Capacity Amendment Bill in the House of Lords on 05 September 2018 here.

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Report on the UK Government’s failing human rights record submitted to UN


coalition of 175 civil society organisations has raised grave concern about the impact of the government’s welfare “reforms” and living standards in the UK, hate crimes, mental health, deteriorating prison conditions, stop and search powers and the Conservative’s plans to repeal the Human Rights Act, among other issues. The organisations include Age UK, Just Fair, Inclusion (London and Scotland), the TUC, Unicef UK, Rights Watch, The Law Centres Network, Mind, the Mental Health Foundation and Stonewall. 

The coalition contributed to a report which calls on the United Nations (UN) to recognise the evidence from the wide range of civil society groups and to ensure the UK Government, and the devolved administrations, are accountable for taking appropriate action and measures to redress many raised human rights concerns. The report authors caution that a high proportion of the 132 recommendations from the last United Nations hearings in 2012 have not been implemented.

The British Institute of Human Rights (BIHR) announced the launch of the Joint Civil Society Report, on the 22 September. It was submitted to the United Nations in Geneva last Thursday as part of the Universal Periodic Review of the UK. 

The report was produced as part of Human Rights Check UK project, which has been assessing human rights changes since the UK was last reviewed by the UN in 2012. BIHR have engaged with over 175 organisations across England, Scotland and Wales through both a call for evidence and by hosting a series of events across Great Britain. These groups range from local community advocacy groups to large national organisations, working on issues such as health, age related issues, children’s issues, justice, education, welfare and many others.

Many of the issues and concerns raised in this report of 84 pages have been under-reported in the mainstream media.

The human rights framework in the UK is being eroded

A key theme throughout the evidence received are serious concerns regarding the proposed repeal of the Human Rights Act. Civil society organisations were worried that a new Bill of Rights would offer weaker human rights protections, particularly impacting the most vulnerable members of society.

The report says repeal of the act would be a “denigration of international human rights law.” It also says in the submission: “The UK’s retrogressive debates are already negatively influencing other countries. There is increasing concern that the UK’s political rhetoric will, if not checked, threaten the coherence and credibility of the post-second world war human rights settlement.”

The report also says: The rhetoric in national media and among senior officials often repeatedly misrepresents and misreports judicial cases, “blaming” human rights laws for situations/decisions which are about other laws or are only partially about human rights (often centring on groups considered “unpopular” or “undeserving”). When the Human Rights Act has positively supported people, this is rarely discussed.

It is vital that the UK Government guarantees it will build upon the Human Rights Act, rather than amending or repealing it via a new bill of rights. Refusal to give such a guarantee should be recognised as an indication that there is a significant risk of the human rights framework in the UK being eroded.”

These are all concerns that I have raised myself over the last two years, along with many other campaigners.

Other key issues raised were related to growing poverty and inequality across the UK as a result of welfare “reforms” and austerity measures. The report reflects the damaging impact that Conservative policies are having on a number of human rights issues, including access to justice, children and women’s rights and the right to an adequate standard of living. These are problems and themes which many of us have been campaigning and writing about for the last four or five years.

Social security no longer alleviates poverty and homelessness

Many concerns were raised about the impact of the welfare cuts, growing poverty and an inadequate standard of living in the UK. The report said that recent policy and legislative changes have seen a regression in standards of living and the welfare system’s ability to tackle poverty, homelessness and unemployment. Many organisations reported that this is having a negative impact on marginalised social groups, among which are some of our most vulnerable citizens. 

For example, the abolition of disability premiums may result in 100,000 disabled children losing up to £28 a week. Changes to personal allowances will leave single parents with severe disability needs with £73 less a week. There was recognition of the discriminatory impact of the bedroom tax on disabled adults and children, carers, domestic violence victims, separated parents and others.

The benefit cap disproportionately impacts on single parents, children and BME groups. The Supreme Court ruled that the cap violates the United Nations Convention on the Rights of the Child  (UNCRC) but did not overturn the policy. The UK Government has further reduced the cap to £20,000 per annum for households outside of London and £23,000 for those within Greater London through the Welfare Reform Work Act 2016, affecting 92,000 more households.

The report also said that benefit sanctions have significantly increased and that evidence strongly suggests links to rising destitution and food bank use. Many people have received sanctions in “error”. The authors pointed out that there is no empirical evidence that sanctioning is in any way effective in “getting people back to work”. 

It was also noted that the government claim to have introduced a National Living Wage in 2016, to increase minimum wage to over £9 per hour by 2020. This does not apply to those under 25. Rates are not set in accordance with recommendations from the Living Wage Foundation.

Further concerns raised are freezes to working-age benefits for four years from April 2017, the removal of the Child Tax Credit entitlement for third or subsequent children born after 6 April,  repeal of the Child Poverty Act 2010. Although the Government will publish child poverty data, there are no longer statutory targets or a duty to report.

The report authors also acknowledged that there been an unprecedented rise in the use of food banks, and several submissions directly related this to welfare cuts and austerity measures. One million people were provided with 3 days of emergency food in 2015/16. 

It was noted that the Parliamentary committee recently (2015) assessed the impact of the Equality Act 2010 on disability discrimination, concluding it was unsatisfactory. Particular issues raised in evidence submissions include: the significant and disproportionate impact of welfare cuts on disabled people, e.g. Work Capability Assessments have seen many disabled people incorrectly assessed as fit for work; concerns about the portrayal of disabled people as “benefit scroungers”, perpetuated by some sections of the media and political leaders, and new tribunal fees being a disincentive to bringing discrimination cases forward. 

There was also widespread concern expressed that cuts to legal aid have impacted on the most disadvantaged groups in society, deterring potentially successful legal cases and challenges, and removing sources of advice and support. There is a disproportionate impact on women, children, BME communities, disabled people and people living in poverty.

Among the recommendations made:-

The UK government should:

  •  Monitor and review the impact of welfare reforms on living standards, increased poverty and food insecurity, and work to break the link between welfare support and poverty
  •  Pause and review its sanctioning policy, ensuring no person is pushed in to destitution
  •  Abolish the spare room subsidy since it causes destitution and has not served its purpose
  •  Reconsider changes to child poverty policy and ensure no child is living  in poverty
  •  Create a living wage that accurately reflects the cost of living within the UK

Among other human rights failings, the report highlights the fact that race is the most commonly recorded motivation (82%) for hate crimes in England and Wales and that the Brexit vote coincided with a surge in such offences. It links reports on the government’s policy of creating a “hostile environment” for migrants with discrimination against those from minority communities. It’s true that political and media rhetoric about migration is loaded with dehumanising metaphors.

Mental health service funding cuts and government policies are having negative impacts on vulnerable people

Evidence submitted highlighted a number of serious issues, including:

  • The underfunding of mental health services, resulting in just 25% of people receiving help.
  • In England, funding for mental health trusts has dropped in real terms by 8.25% since 2010.
  • Shortfalls in services have resulted in the police responding to people in crisis. In 2014-15, in England and Wales, the police picked up 23,128 people in mental health crisis and 4,537 were taken to a police cell because there was no other safe place available (although this is down from the previous year).
  •  Patients being placed in units far away from their home and support networks as a result of closing in-patient units. In 2015-16, 5,411 patients were sent ‘out of area’.
  •  The disparity across the UK in accessing talking therapies. In 2014-15, 33% of people in England waited longer than 28 days to start treatment following referral and 7% longer than 90 days. In Wales, data shows 57% of people waited over three months for an assessment and their first session.
  •  Concern that legal protections for people with mental capacity issues are not sufficient, including that the Mental Capacity Act and the Deprivation of Liberty Safeguards in England and Wales are no longer fit for purpose (the Law Commission is reviewing both) and that the Adults with Incapacity Act in Scotland is not compatible with human rights standards.

Trade Unions and charities have been systematically disempowered

Serious concern was expressed that recent legislation has introduced unjustified, disproportionate and discriminatory restrictions on trade unions activities. The Trade Union Act 2016 sets statutory thresholds and substantial new legal hurdles which unions must overcome to take lawful industrial action in defence of their jobs, livelihoods, wages and working conditions.

The “Lobbying Act” has created additional layers of regulation for charities and Trade Unions, already subject to rules on political activities. The Lobbying Act’s chilling effect has been reported across jurisdictions. Research found 63% of charity respondents said the Act will make it harder to achieve their charitable objectives.

The recent Hodgson Review concluded that the Act did not strike the right balance. The UK Government has yet to respond to the report’s recommendations.  CSOs are also critical of UK Government proposals to introduce an “anti-advocacy clause”, restricting organisations that receive public money from lobbying Government.

There are concerns about flawed research underpinning the proposal and its impact on civil society organisations (CSOs) being able to amplify community voices with the State. This has implications for democracy.

The Trade Union Act 2016 sets statutory thresholds and substantial new legal hurdles which unions must overcome to take lawful industrial action in defence of their jobs, livelihoods and working conditions.

There is widespread concern about the impact of the UK referendum to leave the European Union on human rights. Whilst the Human Rights Act is separate from the EU, a number of other rights-based standards emanate from the EU, including equality and employment law standards. 

Stephen Bowen, the chief executive of BIHR, said: “The UK government needs to listen, not just to the United Nations but to the voices of the huge range of organisations closer to home that have shared their serious concern. They are troubled the government is taking the UK towards further isolationism and disregarding the United Nations, worsening the situation with welfare and legal aid cuts, and wanting to scrap the Human Rights Act, weakening its accountability for our rights at home as well as internationally.”

The report was launched on 22 September at Westminster, with contributions from Sir Nicolas Bratza (Chair of BIHR, and former president of the European Court of Human Rights), David Isaac CBE (Chair of the Equality and Human Rights Commission), the Rt Hon. Harriet Harman QC MP (Chair of the Joint Committee of Human Rights) and BIHR deputy director, Sanchita Hosali.

Harriet Harman, welcomed the report for its breadth and depth, and said she would be raising the issues explained with the Justice Secretary, Liz Truss, when she appears at the JCHR next month. Harriet spoke about how the UK level government debates on human rights were leading to a corrosion of rights domestically, and undermining the core principle of universalism. 

She spoke of how the UK needs to recognise and celebrate, not disparage, international accountability, whether that be at the UN or the European Court of Human Rights. Yet the contrast between what the UK Government says domestically versus what is said at the UN can be like “hearing two different administrations.”

Director, Stephen Bowen, conveyed whole-hearted thanks to the 175+ organisations that have helped shape BIHR’s report, to root it in the very real and pressing issues many people in the UK face in ensuring their universal human rights are respected, protected and fulfilled. The breadth and depth of organisations involved is a testament to how significant human rights are in the UK.



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The budget: from trickle-down to falling down, whilst holding hands with Herbert Spencer.

proper Blond
“We are moving Britain from a high welfare, high tax economy, to a lower welfare, lower tax society.”

George Osborne, 8 July 2015

The pro-wealthy and anti-humanist budget indicates clearly that the Conservatives are preoccupied with highlighting and cutting the state cost of sustaining the poorest citizens rather than the costs of subsidising the rich.

I’ve pointed out before that the Conservatives operate a perverse, dual logic: that wealthy people need support and encouragement – they are offered substantial financial incentives – in order to work and contribute to the economy, whereas poor people apparently need to be punished – by the imposition of financial cuts – in order to work and contribute to the economy.

That Osborne thinks it is acceptable to cut the lifeline benefits of sick and disabled people to pay for government failures, whilst offering significant cuts to corporation tax rates; raising the tax-free personal allowance and extending inheritance tax relief demonstrates very clearly that the myth of trickle-down is still driving New Right Conservative ideology, and that policy is not based on material socio-economic conditions and public need. (And Cameron is not a one-nation Tory, despite his claims.)

Research by the Tax Justice Network in 2012 indicates that wealth of the very wealthy does not trickle down to improve the economy, but tends to be amassed and sheltered in tax havens with a detrimental effect on the tax bases of the home economy.

A more recent report – Causes and Consequences of Income Inequality : A Global Perspective by the International Monetary Fund concluded in June this year that there is no trickle-down effect –  the rich simply get richer:

“We find that increasing the income share of the poor and the middle class actually increases growth while a rising income share of the top 20 percent results in lower growth—that is, when the rich get richer, benefits do not trickle down.”

It’s inconceivable that the Conservatives fail to recognise such policy measures will widen inequality. Conservatives regard inequality and social hierarchy as inevitable, necessary and functional to the economy. Furthermore, Conservatives hail greed and envy as emotions to be celebrated, since these drive competition.

Since the emergence of the New Right, from Thatcher to Cameron, we have witnessed an increasing entrenchment of Neoliberal principles, coupled with an aggressive, authoritarian brand of social conservatism that has an underpinning of crude, blunt social Darwinist philosophy, as carved out two centuries ago by the likes of Thomas Malthus and Herbert Spencer.

Spencer is best known for the expression “survival of the fittest,” which he coined in Principles of Biology (1864), after reading Charles Darwin’s work. Spencer extended natural selection into realms of sociology, political theory and ethics, ultimately contributing to the eugenics movement. He believed that struggle for survival spurred self-improvement which could be inherited. Maslow would disagree. All a struggle for survival motivates is just a struggle for survival.

Spencer’s ideas of laissez-faire; a survival-of-the-fittest brand of competitive individualism; minarchism – minimal state interference in the processes of natural law – and liking for private charity, are echoed loudly in the theories of 20th century thinkers such as Friedrich HayekMilton Friedman and Ayn Rand who each popularised Spencer’s ideas, whilst Neoliberal New Right Conservatives such as Ronald Reagan, Margaret Thatcher and David Cameron have translated these ideas into policies.

Ideology has considerable bearing on policies, and policies may be regarded as overt, objective statements of political intent. I’ve said many times over the past five years that Conservatives have forgotten that democracy is based on a process of dialogue between the public and government, ensuring that the public are represented: that governments are responsive, shaping policies that address identified social needs. Conservative policies are quite clearly no longer about reflecting citizen’s needs: they are increasingly authoritarian, and all about telling us how to be.

Conservatives have always coldly conceived society as a hierarchy of human value, and they have, from their pinnacle of supremacist, self-appointed authority, historically cast the vulnerable and the poorest as the putative “enemies of civilization.” Social Darwinism is written in bold throughout their policies.

Furthermore, such a combination of Neoliberal and Conservative political theory, explicitly opposes democratic goals and principles. Neoliberalism was originally used by academics on the Left as a pejorative to capture the policies of imposed exploitation, privatisation, and inequality.

Neoliberalism is now characterised by the use of international loans and other mechanisms to suppress unions, squash state regulation, elevate corporate privilege, privatise public services, and protect the holdings of the wealthy. The term became widely recognised shorthand for rule by the rich, authoritarianism and the imposition of limits on democracy.

Banks, corporations, the financial sector, and the very wealthy are exercising power and blocking any attempt to restructure the economic system that brought about the crash.

Meanwhile, the free market is a market free for powerful interests; the profit motive has transformed the organising value of social life, and those who the Conservatives evidently regard as collateral damage of this socio-economic dogma made manifest are paying the price for the global crash, with Osborne and the Conservatives constructing narratives that problematise welfare support, generating moral panic and folk devils to demonise the poorest citizens in need of support.

Growing social inequality generates a political necessity for cultivating social prejudices.

Such Othering narratives divert public attention from the fact that the right to a fair and just legal system, a protective and effective safety net for the poorest, free healthcare – all of the social gains of our post-war settlement – are all under attack.

I have said elsewhere that Conservative ideology is incompatible with our legal commitments to human rights. The United Nations declaration of Human Rights is founded on the central tenet that each and every human life has equal worth. The Conservatives don’t agree, preferring to organise society into hierarchies of worth and privilege.

Conservative austerity measures and further impending welfare cuts are not only a deliberate attack on the poorest and most vulnerable social groups; the range of welfare cuts do not conform to a human rights standard; the “reforms” represent a serious failure on the part of the government to comply with Britain’s legal international human rights obligations.

The cuts announced by the chancellor include a further reduction to the benefits cap – not only from £26,000 to £23,000, as promised in the Conservative Party’s 2015 manifesto, but down even further to £20,000 outside of London.

Child tax credit, housing benefit and working tax credit will be reduced, with child tax credit only being paid for the first two children. Presumably this is, to quote Iain Duncan Smith, to “incentivise behavioural change,” placing pressure on the poorest to “breed less,” though personally, being the direct, blunt, no-nonsense sort, I prefer to call it a nudge towards “eugenics by stealth.”

The Social Mobility and Child Poverty Commission say that any cuts to tax credits will cut the incomes of 45 per cent of working families. These cuts are particularly controversial, since the benefits cap was partly justified as a way of “making work pay”  – a Conservative narrative that echoes the punitive 1834 New Poor Law Principle of less eligibility – see: The New New Poor Law.

The Government asserts that its welfare “reform” strategy is aimed at breaking the cycle of “worklessness” and dependency on the welfare system amongst the poorest families. It’s more punitive Poor Law rhetoric.

There’s no such thing as “worklessness”, it’s simply a blame apportioning word, made up by the Tories to hide the fact that they have destroyed the employment market, just as Thatcher did, and as the Conservatives always do.

Punishing the low paid, cutting the income of families who work for low wages directly contradicts the claim that the Conservatives are “making work pay.”

Yet Osborne has framed his welfare cuts with the “The best route out of poverty is work” mantra, claiming that slashing the social security budget by £46 billion in the next five years, (including cutting those benefits to disabled people, who have been assessed as unfit for work and placed in the Work Related Activity Group (WRAG), and cutting in-work benefits, such as tax credits) is needed to make sure “work pays” and that: “we give a fair deal for those on welfare and a fair deal to the people, the taxpayers of this country who pay for it.”

The Conservatives always conveniently divide people into an ingroup of taxpayers and an outgroup of stigmatised others – non-tax payers. However, most people claiming benefits are either in work, and are not paid enough, through no fault of their own, to pay tax, or are pensioners who have worked most of their lives; or are unemployed, but have previously worked and contributed tax.

Most people claiming disability benefits have also worked and contributed tax, too.

Unemployment and in-work benefit claims are generally a measure of how well or poorly the government is handling the economy, not of how “lazy” or “incentivised” people are.

And only the Tories have the cheek to claim that raising the minimum wage (long overdue, especially given the hikes in the cost of living) is the introduction of a living wage. The basic idea is that these are the minimum pay rates needed so that workers have an acceptable standard of living. Over the last few years, wages have very quickly fallen far behind the ever-rising cost of living.

The increase is at a rate of £7.20 an hour for people over the age of 25.  Housing benefit will be withdrawn from those aged between 18 and 21, while tax credits and universal credits will be targeted at people on lower wages by reducing the level at which they are withdrawn.

The chancellor’s announcement amounted merely to an increase in the minimum wage, and the curbs on tax credits would hit low-paid workers in other ways, unfortunately.

Whilst the announcement of a phased increase in the minimum wage is welcome, it is difficult to see how this will reverse the increasing inequality that will be extended as a further consequence of this budget without a matching commitment to improving the structural framework – the quality and stability of employment available. As it is, we are now the most unequal country in EU.

If the government were sincerely interested in raising wages to make work genuinely pay, ministers would be encouraging rather than stifling trade unionism and collective bargaining. But instead we see further cuts to public sector pay in real terms year after year and the raising of the legal bar for industrial action so that strikes will be effectively outlawed in public services. And let’s not forget the grubby partisan policy of two years ago – the Let Lynton Lobby Gagging Act.

Rhys Moore, director of the Living Wage Foundation, said:

“Is this really a living wage? The living wage is calculated according to the cost of living whereas the Low Pay Commission calculates a rate according to what the market can bear. Without a change of remit for the Low Pay Commission this is effectively a higher national minimum wage and not a living wage.”

Those most affected by the extreme welfare cuts are those groups for which human rights law provides special protections. The UK government has already contravened the human rights of women, children, and disabled people.

The recent report of the UK Children’s Commissioner to the UN Committee on the Rights of the Child, published in July this year, says:

“Response to the global economic downturn, including the imposition of austerity measures and changes to the welfare system, has resulted in a failure to protect the most disadvantaged children and those in especially vulnerable groups from child poverty, preventing the realisation of their rights under Articles 26 and 27 [of the UN CRC] … Reductions to household income for poorer children as a result of tax, transfer and social security benefit changes have led to food and fuel poverty, and the sharply increased use of crisis food bank provision by families.”

The parliamentary Joint Committee on Human Rights recently reported on the UK’s compliance with the United Nations Convention on the Rights of the Child (CRC), and found it woefully lacking:

“Welfare cuts will ensure that the government is not in compliance with its international human rights obligations to realise a right to an adequate standard of living under Article 11 of the International Covenant on Economic and Social Rights (ICESR) and a child’s right to an adequate standard of living under Article 27 of the UN CRC. Further it will be in breach of the statutory target to eliminate child poverty contained in the Child Poverty Act 2010.”

Just in case you missed it, there has been a very recent, suspiciously timed change to the definition of child poverty, and a proposed repeal of the Child Poverty Act – something that Iain Duncan Smith has been threatening to bring about since 2013.

It’s yet another ideologically directed Tory budget, dressed-up in the rhetoric of economic necessity, detached from public needs.

And Conservative ideology is all about handouts to the wealthy that are funded by the poor.


George Osborne’s Political MasterstrokeA View from the Attic

Osborne’s class spite wrapped in spin will feed a backlashSeumas Milne

Budget 2015: what welfare changes did George Osborne announce, and what do they mean?  New Statesman: The Staggers

How Osborne’s new cuts breach the UK’s human rights obligations, Lecturer in Law at Lancaster University

Osborne’s Autumn statement reflects the Tory ambition to reduce State provision to rubble

Osborne’s razor: the Tory principle of parsimony is applied only to the poorest

The BBC expose a chasm between what the Coalition plan to do and what they want to disclose

Thanks to Robert Livingstone