Human Rights and Clinical Practice An Introduction to Human Rights for Clinical Psychologists

Human Rights: ‘Giving Psychology a backbone’ Clinical Psychology’s core values are highly congruent with a Human Rights Based Approach  (HRBA) Human rights ensure what we do has legal backbone Human rights are a key theme in recent policy Human rights link disparate concepts together Human rights inform our professional code of ethics Human rights offer a shared multidisciplinary language Human rights set standards for the Care Quality Commission (CQC) Facilitator’s Notes: As clinical psychologists, there are many reasons why we should endorse a HRBA to our practice (later slides will go through the main areas on this slide) At its core, clinical psychology shares many of the values underlying the HRA (Kinderman, 2007; Kinderman and Butler 2006). In addition, with their statutory weight, human rights approaches can also strengthen person-centered approaches (Mansell and Beadle Brown, 2005) which are often the first casualty of competing agendas such as risk management or time and financial pressures (Mansell & Beadle-Brown, 2005). As part of a public authority, we have a ‘positive obligation’ to promote rights, not just to prevent rights abuses. Whilst there is an increasing drive for psychologists to practice in the private and third sectors, many of these services are still commissioned by public authorities and thus may be subject to the same positive obligation to respect and promote human rights. The HRA and human rights based approaches also have the potential to offer a robust and unifying framework for disparate strands of policy and law (Greenhill and Whitehead, 2011). The HRA informs the principles of the MHA and MCA. Our code of ethics is informed by a HRBA (BPS, 2009). Other MDT staff are signed up to the approach through their professional bodies. Finally, the regulatory body for the NHS, the CQC, is taking a HRBA to evaluating services (CQC, 2014). Additional points: The economic case for human rights based approaches. Human rights approaches emphasise a preventative, proactive, approach which is usually cheaper than more restrictive and invasive practice. For example, the Department of Health (DoH) estimate that ‘out-of-area’ placements for people with learning disabilities such as Winterbourne View cost in the region of £180,000 per person, per year (DoH, 2012). Interventions which support people within their own communities are often considerably less expensive (DoH, 2012).

Human Rights, the Law and Policy Human Rights Law is primary legislation. The Human Rights Act (HRA) requires that new legislation should be compatible with it, or if not, ministers must explain the incompatibility to Parliament. The Mental Capacity Act (2005) and Mental Health Act (1983, amended 2007) are strongly informed by the Human Rights Act. The guiding principles of the Mental Health Act draw on the Human Rights Act (Department of Health, 2015) Key recent health policy documents also use or refer to a human rights framework: The NHS constitution (Department of Health, 2013) Positive and Proactive Care (Department of Health, 2014): Restraint reduction Facilitator’s Notes: (see also pages 20-23 of the resource pack) This means that new legislation should be compatible with it, or if not, ministers must make a ‘declaration of incompatibility’ and explain the incompatibility to Parliament. The HRA does in fact allow ministers to introduce legislation that is knowingly incompatible with the ECHR. Under s19 HRA, bills must have an accompanying statement of compatibility, by which a minister states either (i) that in his/her view the bill is compatible or (ii) that it isn’t, but s/he wishes to proceed anyway. On rare occasions, ministers have done (ii). The new guiding principles for the MHA (2015) draw strongly on the HRA. The principles are: Least restrictive option and maximising independence, Empowerment and involvement, Respect and dignity, Purpose and effectiveness, Efficiency and equity. Mental Capacity Act The MCA (2005) provides a framework for decision-making involving people who have not got the mental capacity to make their own decisions. The MCA is designed to be fully compliant with the HRA. The MCA takes a similar approach to the MHA (1983) in outlining five guiding principles (table four) to guide clinicians in its application. The MCA includes the Deprivation of Liberty Safeguards. It was amended to include these following a human rights case which was brought to the European Courts - the so-called ‘Bournewood judgement’. The values of the NHS constitution are: 1. Working together for patients 2. Respect and dignity 3. Commitment to quality of care 4. Compassion 5. Improving lives 6. Everyone counts Positive and Proactive Care (Department of Health, 2014) provides an example of recent policy informed by human rights approaches. ‘Positive and proactive’ formed part of the government’s response to both Winterboune View rand MIND’s report on restraint in mental health services (Mental health crisis care: physical restraint in crisis. A report on physical restraint in hospital settings in England, June 2013). One of the key principles of the document is “Compliance with the relevant rights in the European Convention on Human Rights at all times”. The document recommends that a human rights based approach can be achieved by applying the ‘PANEL’ principles.  

Using Human Rights to Integrate Frameworks Service User inclusion Relationships and relational context: Collaboration, formulation & dialogue Values based approaches (Person Centred Planning and Recovery Model) Legal Rights and Frameworks (Mental Capacity Act, Mental Health Act) Equality and Diversity Drivers Human Rights Based Approach Facilitator’s Notes: A human rights based approach links lots of disparate concepts together and ensures what we do has legal backbone Concepts which we think are helpful/essential to each other HRBA… gives service user inclusion and person centred planning a legal backbone, emphasising inclusion is only possible if we think about relationships, relationships and collaboration are arguably key factors in recovery.

Human Rights and Ethics for Psychologists: BPS Code of Ethics & Conduct (2009) Psychological approaches depend on a professional commitment to the underlying philosophy of human rights, of promoting autonomy, dignity and respect Psychologists are explicitly required to give ‘particular regard to people’s rights including those of privacy and self-determination’ We are also obliged to ‘evaluate the rights, responsibilities and welfare of all clients and stakeholders’ in ethical decision making (BPS Code of Ethics and Conduct, 2009). Facilitator’s Notes: Code designed with the variety of different work psychologists may undertake in mind. Code of Ethics described as drawing on the following frameworks to United Nations Universal Declaration of Human Rights (1948) European Convention on Human Rights and Fundamental Freedoms (1963, last amended 1985)

Human rights offer a shared multidisciplinary language Psychologically informed thinking, practice and culture within teams and services can be built using the shared language of human rights. The professional bodies of other disciplines are charged with upholding human rights principles (Royal College of Psychiatrist’s Special Committee on Human Rights) Other professional bodies have operationalised rights perspectives through position statements (Royal College of Nursing, 2012; World Federation of Occupational Therapists, 2006). Facilitator’s Notes: Psychologists are not professionally alone in retaining a commitment to human rights. The professional bodies of other disciplines are charged with upholding Human Rights principles (e.g. Royal College of Psychiatrists Special Committee on Human Rights), or have operationalised rights perspectives through position statements (Royal College of Nursing, 2012; World Federation of Occupational Therapists, 2006). Psychologically informed thinking, practice and culture within teams and services can be built using the shared language of human rights. (Royal College of Nursing (2012). Human rights and nursing: RCN position statement. RCN Congress and Exhibition Harrogate 13-17 May 2012 World Federation of Occupational Therapists (2006). Position statement on Human Rights. Available at www.wfot.org [Accessed on 3 February 2014].)

Human Rights and the Care Quality Commission The CQC takes a human rights based approach to the regulation of care services. One of the CQC’s principles is to ‘To promote equality, diversity and human rights’ The CQC aims to ‘provide people with safe, effective, compassionate and high-quality care’ The FREDA principles (Fairness, Respect, Equality, Dignity, Autonomy) are integrated into the questions it asks of service providers The CQC also specifically considers the ‘Right to life’ and the ‘Rights of staff’. (Care Quality Commission, 2014) Facilitator’s Notes: In the document ‘Human rights approach for our regulation of health and social care services’ (Care Quality Commission, 2014), the CQC has developed a human rights approach to regulation of care services. They explain this as follows. “Why do we need a human rights approach? We need a human rights approach because: Respecting diversity, promoting equality and ensuring human rights will help to ensure that everyone using health and social care services receives safe and good quality care. This is our core purpose. Our human rights approach will help us to apply our principle of promoting equality and human rights to our purpose, using our five key questions to consistently integrate human rights into the way we regulate. The CQC considers human rights whilst asking five key questions: Are health and social care services safe? Are health and social care services effective? Are health and social care services caring? Are health and social care services responsive? Are health and social care services well-led?