Despite the recent ruling by the Law Lords
that the Human Rights Act does not apply to private care homes in
England and Wales, Sarah Erwin, social care expert at law firm
Browne Jacobson, points out that businesses still need to be
prepared for an increasingly litigious climate.
The Lords upheld the view taken by the Court
of Appeal earlier this year that when accommodating residents, a
private care home does not perform the functions of a public
authority.
The ruling came in the case of an 84-year-old
woman with Alzheimer's disease, known for legal purposes as Mrs YL.
The home providing her care, run by private company Southern Cross
Healthcare, wanted to cease her care following disagreements with
her relatives.
Her lawyers argued that her threatened
eviction would violate her right to family life under the Human
Rights Act. Also, evidence submitted by a psychiatrist claimed
there would be "up to a 25% chance" of her not surviving any
attempt to remove her from her current
surroundings.
The argument did not succeed, since some
sources state that over 91% of care homes in England and Wales are
owned and run by the private and voluntary sector. As such, if the
Lords’ decision had gone the other way, it would have could
affected more than 300,000 care home residents.
Although Southern Cross successfully defended this case, they will
have invested a huge amount of time, money and energy in doing so.
For other, smaller businesses, this might have been crippling.
The courts have shown a willingness to listen
to arguments made under the Human Rights Act and via expensive,
innovative proceedings.
Certainly, as the number of older and
vulnerable people in the community grows, and the way in which
their needs are addressed evolves, the private care and nursing
sectors can expect to see more challenges through the courts and
tribunals.
The main challenges are likely to come from:
- The Commission for Social Care Inspection
- Coroner's Inquests
- Civil claims for compensation from staff, residents and
families
- Employment Tribunals
- Cases concerning the Mental Capacity Act
Not only will these be draining in terms of resource and morale,
they could also have a serious effect on a private care homes’
reputation. It is vital, therefore, that care businesses consider
these risks when they selecting and renewing insurance
policies.
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