National Care Standards Review: Consultation Analysis

3 The Foundations Of New National Care Standards

Background

3.1 The Scottish Government believes that new National Care Standards should take a human rights-based approach. By this they mean putting people who use services at the centre of how they are planned and delivered. They also mean increasing understanding and respect for human rights in those services.

3.2 The Scottish Government thinks that standards should make it easier for public services to work together, and that they must therefore work in very different settings. They wish to develop standards which people using and working in these services will understand easily.

3.3 It is proposed that the new standards should set out both the essential requirements of a service and the elements to which services should aspire to help them to improve.

Question 1: Do you think that the new National Care Standards should be grounded in human rights?

3.4 434 respondents (91% of all those who responded to the consultation) addressed the closed aspect of this question, indicating yes, no or don't know. Of these, 401 respondents (92%) agreed that the new National Care Standards should be grounded in human rights. Amongst the remaining 33 respondents, 27 (21 of whom were individual respondents) did not know whether they agreed or disagreed with the proposal, and six (five individuals and one professional representative body) disagreed.

3.5 Recurring views were that human rights are relevant to all and the proposal would ensure people are placed at the heart of services, enabling everyone to be treated equally.

3.6 Many respondents from a variety of sectors proposed rights which they felt were particularly relevant in the context of care and health services including: dignity; respect; privacy; choice; participation; wellbeing; availability of services; equality of access to services; being treated in a polite manner; and access to independent advocacy. One respondent (Vol) commented that rights should go beyond basic, minimum levels, to those which make life worth living such as scope for socialising, mental stimulation and participation in physical activities.

Perceived benefits of the proposal

3.7 Some respondents outlined what they perceived to be the more specific benefits of grounding the new National Care Standards in human rights. The three most commonly cited were:

• Will align the standards with modern UK approaches and European Union legislation.
• Will clarify for service providers and service users alike, what can be expected in terms of service. One respondent remarked:
• "It also makes clear to providers of care services the expectations of individuals and society toward those who come under their care and the responsibilities and obligations that they must meet as care providers" (NHS Education for Scotland).
• Will empower users to be more fully involved in decisions affecting them.

3.8 Other key advantages to the proposal were identified less frequently:

• Services will need to fit around patients, rather than the other way around.
• Will result in greater transparency of care and more accountability in provision and delivery of services.
• Promotes greater consistency of delivery of care and health services.
• Easy to understand for user and deliverer alike.
• Will make staff more aware of their responsibilities.
• Can be used as the basis of decision-making in care and health provision.
• Will make the National Care Standards more meaningful and accessible for service users.
• Will contribute to reducing/avoiding discriminatory practices.

Concerns over the proposal

3.9 Both opponents and supporters of the proposal raised concerns over aspects of the proposal. Most commonly raised were concerns that the proposal would increase service user expectations which service providers may not be able to meet, due to constraints outwith their control. Limited budgets and large caseloads were raised in this respect as variables which could impact on the ability to deliver services in adherence to human rights principles. Two respondents (Rep, Vol) envisaged a danger in paying only lip service to human rights principles if services are not underpinned with adequate resourcing.

3.10 Many different views emerged in responses about the degree to which achieving a human rights-based approach can be measured. There appeared to be a spectrum from those perceiving the approach to be measurable, concrete, able to be enforced and inspected, to those viewing the approach as intangible, more of a reference point, and a philosophy. Some respondents urged that the standards be developed with a focus on outcome, against which performance can be assessed. Others, however, felt that human rights provided a context, which fitted more with process than with absolute standards. A few argued that interpreting human rights within the context of care services depended largely on individual relationships between the deliver and the user, which made it difficult for inspectors to assess.

3.11 A few respondents expressed concern that human rights law and frameworks may be too rigid to cover the broad area of care and health services, with one respondent (Vol) commenting that although the proposal was desirable, it should not have the unintentional consequence of restricting the frame of reference used to develop the standards.

3.12 Another less prominent theme to emerge from responses was that the rights of service providers should also be part of the framework of the new standards, as should associated responsibilities of users and providers. One respondent (Vol) suggested that this would help to prevent future abuses of the term human rights.

3.13 Another minor theme was that common sense should prevail in the application of a human rights-based approach in order to maintain proportionality and balance. A few individual respondents urged that the approach should not become overly bureaucratic with over-zealous emphasis on human rights leading to lack of judgement (which some considered had occurred in relation to health and safety legislation). One respondent (Vol) remarked that some people's rights are already impeded for various reasons, such as being on a court order, and that a sensible and balanced approach should be taken when applying human rights-based standards to their care.

3.14 A few respondents highlighted their view that clarity would be required on how to handle conflicting needs and rights. Examples were provided of user and carer rights, parent and child rights, the rights of the many and the rights of the few, all presenting possible conflicts. One respondent commented:

"....there must be a balance of rights in care - there are competing rights - carers, clients, communities, organisations etc., all have rights. Others may have an interest in the care of a person and this should also be taken into consideration" (LifeCare (Edinburgh) Limited).

3.15 One respondent (Vol) commented that the consultation had not provided an alternative approach to that of human-rights, and questioned whether there was another option for consideration.

Views on the added benefits of the proposal

3.16 A recurring view was that the current care standards already take account of human rights, with human rights legislation already covering care services' professional practice. A few respondents, however, emphasised their view of the importance of making links to human rights explicit to reflect the vulnerability of service users.

3.17 One respondent (Vol) suggested that the proposal served to move services from their current stance of focusing on not breaching an individual's rights, to one of pro-active consideration of their rights with these at the centre of decision-making.

3.18 Many respondents identified the opportunity which the proposal brought to developing the approach in line with other approaches. Most commonly cited was aligning with the United Nations Convention on the Rights of the Child (UNCRC) and with the GIRFEC approaches. Other approaches mentioned in this regard included: self-directed support; new national health and wellbeing outcomes; dementia standards; National Action Plan for Human Rights in Scotland; the SHANARRI wellbeing indicators; and the Mental Health Act.

Raising awareness

3.19 A common view was that in order for the new approach to be successful, there would need to be clarity on precisely what human rights mean in this context, and how they would be manifested in the standards. Respondents from across a range of sectors argued for a clear and common understanding of these issues which could be promoted to service users and providers alike in education and other formal and informal contexts. One respondent remarked:

"Being explicit about human rights in the standards will help to develop a better culture around human rights by informing both service users and staff about a human rights based approach and how it applies to daily lives" (NHS Health Scotland).

3.20 Several respondents emphasised that particular effort would need to be applied to ensuring people with communication difficulties due to, for example, hearing loss or cognitive impairment, are made aware of the human rights-based underpinning to care services.

3.21 A recurring recommendation was for the standards to be written in a manner which made sense to users and deliverers of care, to move beyond rhetoric and include, for example, illustrations of how human rights principles should be applied in practice. One individual respondent provided their rationale for this:

"Some people (like me) know they have human rights but don't know how to use them. Or what they mean in reality."

3.22 The notion of a Charter of Service User Rights was promulgated as a way of enabling the standards to become less abstract and more meaningful for users.

Summary of main findings

There was much support for the proposal that new standards adopt a human rights-based approach. This was seen as in alignment with modern UK approaches and European Union legislation and would enable users to be more involved in decisions affecting them.

A key concern was that service providers may not be able to meet service users' raised expectations of service due to constraints beyond their control.

Clarity on how the human rights-based approach would be manifested in the context of the new standards was requested.