I’m delighted to be asked to write for FIOP about the importance of taking a human rights-based approach to policy development. Anyone who knows me, knows that this is by far one of my favourite subjects!
But why write about rights, and why now?
Well, firstly because there’s no wrong time for rights; you’d be hard pushed to find any aspect of human life that doesn’t involve them in some way, shape or form. They are inherent to all us human beings, without discrimination, and irrespective of our faith, age, gender, nationality, or any other characteristic.
Secondly, because there’s an increasing amount of talk about rights in Scotland at the moment, particularly (but not exclusively) in ‘policy-land’.
Many policy areas that affect older people contain a strong human rights element. This includes dementia, palliative care, Scotland’s new social security powers, the (newish) National Health and Care Standards, the National Performance Framework, social care, transport, and many others.
However, despite the welcome recognition of rights on paper, people still routinely report not experiencing them in their everyday lives, including when accessing services and support. We’ve got a serious – and potentially growing – problem with the ‘implementation gap’, and we need better ways to plug it.
I believe that part of this work includes raising everyone’s awareness and understanding of what rights look like in our daily lives, and not shying away from the many myths and misunderstandings that can arise.
A good place to start is by looking at the fundamental principles that underpin human rights. Many people have heard of the Human Rights Act and European Convention on Human Rights, but there’s a whole raft of other international human rights treaties overseen by the United Nations and signed up to by our governments. Rights are universal and belong to all of us, irrespective of whether the rights in these treaties have subsequently been included in national laws. That said, rights should be set out in domestic legislation so they can be meaningfully enforced. This is why it is so encouraging that the Scottish Government has set up a National Human Rights Leadership Task Force – led by Professor Alan Miller and Cabinet Secretary, Shirley-Anne Somerville MSP – to create a new statutory framework and incorporate economic, social, cultural and environmental rights (https://www.gov.scot/news/new-national-taskforce-to-lead-on-human-rights-in-scotland/).
There are two main groups when it comes to rights – rights holders (people), and duty bearers (public bodies like national and local governments, health boards, etc.)
Rights holders need to be empowered to participate freely, meaningfully and actively in decisions that affect their rights (like agreement to medical interventions, based on well communicated, clear information). They also need to be able to easily claim their rights and have good, free access to redress when things go wrong.
Duty bearers need to be well informed and enabled to realise their obligations to respect, protect and fulfil people’s rights, and should be easily held to account.
As well as better understanding some of the principles, it’s very important to recognise and address the myths and misconceptions about human rights.
For example, some people query the ‘added value’ of rights. ‘What’s the point?’ they ask, ‘Don’t we already do rights?’ or ‘Aren’t you just asking us to do yet another thing – to add to never-ending list of stuff we have to do, like person centredness, coproduction, personal outcomes approaches, etc. etc??’. My response to this is that human rights is the umbrella under which we can address different approaches in a cross-sectoral and joined up way. It is the common language and unifying philosophy to bring seemingly disparate initiatives together.
Some people believe that it’s just not possible to apply rights in real life – they are lofty principles for academics to ponder in their ivory towers. This just isn’t true. There are many practical tools to help embed human rights at all stages of our work; from policy development and law, through to budgeting; implementation, monitoring, evaluation and review. This can help us put the ‘human’ back into our systems and processes. Some of these include:
- Check-in using the PANEL Principles: scottishhumanrights.com/media/1409/shrc_hrba_leaflet.pdf
- Carry out an Equality and Human Rights Impact Assessment: scottishhumanrights.com/
Budget setting and financial management
- Use human rights budgeting: scottishhumanrights.com/economic-social-cultural-rights/human-rights-budget-work
Implementation, monitoring and review
- Train staff using Care About Rights: scottishhumanrights.com/index.html
- Follow the FAIR Flowchart: scottishhumanrights.com/flowchart.html
Human rights are about a paradigm shift and rebalancing power. In the context of health and social care it reframes people who access services as rights holders with the capacity to play an active role in their lives, rather than passive recipients of charity and/or medical interventions. This is empowering for some but can worry and intimidate others, who fear being left to make difficult decisions alone. However, supported decision-making is a key element of a rights based approach.
Rights can also be seen as a threat by the status quo, who think it’s all about lawyers and being sued. Of course there is accountability when things go wrong – as there should be – but if a human rights based approach has been used from the start then ‘things going wrong’ has been better averted to begin with. Another important thing to remember is that the people who work in health and social care are rights holders themselves, and human rights and the rights based approach can help make things better for everyone.
Finally, there is a pragmatic business case for using a human rights based approach because it provides a framework for balancing competing rights, interests and risks. For example, using rights in budgeting and fiscal planning can help overcome anxieties about fairness and transparency, support difficult decision-making, and ensure decisions about value for money and efficient use of resources are made on an equal basis. This is a strong argument when issues are highly politicised, like the care and support of older people in Scottish society.
Have your say
Scotland’s second National Action Plan for Human Rights is currently being drafted and there’s an event for rights holders to contribute in Glasgow on 26th September. Register here: https://www.alliance-scotland.org.uk/blog/events/invitation-to-shape-scotlands-second-national-action-plan-for-human-rights/
Find out more
The ALLIANCE report ‘Being Human’ looks at the policy and practice considerations of implementing rights based approaches in health and care: www.alliance-scotland.org.uk/blog/resources/being-human-a-human-rights-based-approach-to-health-and-social-care-in-scotland-2
Lucy Mulvagh, Director of Policy and Communications, Health and Social Care Alliance Scotland (the ALLIANCE)
30 August 2019