The Scottish Human Rights Commission has developed the “FAIR” system to help care workers consider their actions when seeking to make decisions about the care and daily lives of older care recipients.

I find that rather than seeing human rights as yet another regulatory burden, care workers on the ground are enormously excited once they start to see what it could mean. It very much resonates with the care professionals’ idea of what their job is all about.

Jean Gould, Legal Officer, Help the Aged UK

FAIR:

• Facts: What is the experience of the individuals involved and what are the important facts to understand?
• Analyse rights: Develop an analysis of the human rights at stake
• Identify responsibilities: Identify what needs to be done and who is responsible for doing it
• Review actions: Make recommendations for action and later recall and evaluate what has happened as a result.

In certain circumstances, it is admissible to restrict certain “qualified” rights of older persons, but only within certain circumstances, and within limits.

Qualified rights include:

• The right to respect for private and family life, home and correspondence
• The right to freedom of thought, conscience and religion
• The right to freedom of expression
• The right to liberty and security of person
• The right to freedom of assembly and association
• The right to protection of property

Interference with qualified rights is permissible only if they fulfill the three conditions below:

• Legality – is there a legal basis for the restriction of the right?
• Legitimacy – is there a legitimate aim or justification for the restriction such as the protection of public health or the protection of other people’s human rights?
• Proportionality – is the action proportionate – is it the minimum necessary restriction of the right?

When thinking about decisions that affect any of the qualified rights, it is important that the right is restricted with as little as possible, only going as far as is necessary to achieve the legitimate aim.

For example, an individual may be restrained if they are in immediate danger of hurting either themselves or another individual. However, the restraint should be for the minimum amount of time necessary and steps should be put in place to avoid the need for restraint in the future.

Click here to access ENNHRI’s Toolkit for Care Providers on Implementing a Human Rights-Based Approach to Long-term Care!