In recent years we have seen a renewal of interest in, thinking, and talking about, human rights as a central principle in social care.
Through reclaiming the unique role of the social care profession, social work and occupational therapy, as advocates for the social model (Oliver, 1990, 2012), are reconceiving the inherently activist nature of social interventions. This re-imagined position for social care practitioners, as agents of social justice, re-emphasises the role of social workers and occupational therapists in tackling systemic inequalities, which impact on people’s lifetime (Ferguson et al., 2020).
Health and social care policy for adults in the UK, and also in the US, Australia and Scandinavian countries, has for the last 40 years, made efforts to integrate the social model into practice. However, there remains a functionalist, individualist focus on assessing for individual deficits within health and social care, which fails to capture and recognise contextual or social factors (Bigby, 2020) and the disabling impact of these on the person (Shakespeare, 2013). The deficit approach towards social care can lead to professionals identifying risks to the individual, which can become worrying.
The traditional response to identifying risk is to try and mitigate the risk. In social care this traditional response to risk, can lead to pressure on social workers and occupational therapists to transfer that risk onto a support plan, by increasing the level of daily restrictions which are placed on people’s lives in order to prevent their exposure to risk. Deficit based, perceived risk, thinking in social care results in a marginalisation of the voices of people with care and support needs in relation to how they perceive risk and their right, as adults, to own their own risk. Such approaches take that right away from people and impose controlling restrictions which interfere in their lives (Beresford, 2000). As Lord Justice Munby stated in 2007:
'Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risk as the price appropriate to be paid in order to achieve some other good … what good is it making someone safer if it merely makes them miserable'
Local Authority X vs MM & Anor (No1).
We take our lead from this comment of Munby. We strongly agree Munby. The deficit approach towards social care is disabling of people, and the levels of restriction which are imposed on people who seek support from adult social care is ultimately self-defeating for workers. People who lead sedentary, restricted lives, with limited environmental exposure and social networks, are more likely to have associated physical and mental health impacts which can become life limiting(Norah Fry Centre, 2018; NHSE, 2020). Our alternative to the deficit way of thinking is strengths based practice, which is framed around upholding disabled people’s human rights, as set out in the United Nations Convention on the Rights of Persons with Disabilities (2007).
Human rights are written into the Global Definition of social work. Social work is defined by ‘principles of social justice, human rights, collective responsibility and respect for diversity’ (IFSW, 2014). This definition is underpinned by internationally adopted ethical standards (IFSW, 2018), which charge professionals with upholding:
- recognition of the inherent dignity of humanity
- promoting human rights
- promoting social justice.
The Royal College of Occupational Therapists Code of ethics and professional conduct describes a set of professional behaviours and values that the British Association of Occupational Therapists expects all occupational therapists to follow. The code reminds practitioners of the contextual nature of people’s lives, emphasising that ‘people shape, and are shaped by, their experiences and interactions with their environments’ (RCOT, 2015:1).
Taking a steer from these definitions and ethical standards, we believe that practice which is based in human rights requires more than just a simple advocacy for principles of liberty, autonomy and freedom. We think focusing on these limited aspects of human rights misses the point entirely about what it means to be a human rights based practitioner. Our interpretation is that human rights based practice also has an activist element, which recognises the complex contextual and environmental aspects of people’s lives (Ferguson et al., 2020). Rights-based practice respects that people, whose lives social care takes an interest in, may be at best ambivalent about the outcomes social care practitioners may want for them. At worst, professional interventions may be unhelpful to the point of becoming deeply damaging (Ryan, 2017).
Human rights, as a lens through which social care interventions can be considered, provides the opportunity to ensure that professional values and ethics are being adhered to in practice. To make the social model a reality for people with support needs, we think this means that practitioners need to be strong, activist advocates for rights based practice. Practitioners can support this approach through ensuring that their practice in the following ways:
- Ensure that throughout your career you continue to invest in your own professional development maintaining a current knowledge of human rights law in practice. Keep up to date with research briefings on updates to human rights related case law.
- Advocacy is your friend. Use advocacy services to support and uphold the rights of people you support. And when the advocate is raising issues about your practice, be open to this. Critically reflect, learn, be a better practitioner.
- Know the European and United Nations convention rights. As a professional in health and social care you are in public service and have positive obligations to uphold convention rights. Get involved and support User Led Organisations in campaigns that promote aspects of convention rights which are important to disabled people.
- Understand that Article 8 of the European Convention on Human Rights, the right to a private and family life, is at the heart of good social care. If social care is to take action to interfere in a person from their family, visit their home, impose changes on their life, then whatever follows must be better than what was before. And the person who gets to decide what better means, is the person whose life is being changed, not the professional (see LB Hilingdon v Steven Neary (2011) EWHC 1377 (COP)).
- To achieve the above, hold statutory principle 2 of the Mental Capacity Act 2005 in the highest of regard. Ensure in your practice that all practicable steps, all reasonable adjustments, including time, space and neuro-diverse approaches to communication, are explored to ensure the person’s wishes, feelings and beliefs are always central to decisions (see CH v A Metropolitan Council, 2017).
- If you find you are supporting someone who lacks the capacity to make the specific decision you are taking, ensure sure all steps to enable them to be involved in the decision making process have been taken. Remember that: 'a conclusion that a person lacks decision making capacity is not an ‘off-switch’ for his rights and freedoms. To state the obvious, the wishes, feelings, beliefs and values of people with a mental disability are as important to them as they are to anyone else and may even be more important'
In a Research in Practice webinar: Human rights principles in practice, Elaine and Rob examined case law and practice examples to highlight the complexities of decision making where mental capacity, risk and human rights intersect. This webinar supports practitioners to consider the complexities of the legal frameworks on this area of practice and understand how these fit with making safeguarding personal, strengths based approaches and the ethical frameworks for social work and occupational therapy. The webinar also supports practitioners to reflect on the impact of decision making on people’s lives and consider practice strategies to enable supported decision making and facilitate a risk enablement approach.