The Scottish Human Rights Commission has said the treatment of older care home residents during the pandemic could breach human rights law.

Nearly half of the 4,000 covid-19 deaths in Scotland have been in care homes.

Since the start of the crisis, deaths in care homes from all causes have been 80% higher than in an average year, according to National Records of Scotland.

Now “serious human rights concerns” that could contravene the European Convention on Human Rights and the right to life have been flagged by the watchdog.

Scottish Labour Leader Richard Leonard wrote to the Scottish Human Rights Commission (SHRC) asking them ‘to ensure that the human rights of Scotland’s care home residents are upheld and defended’, and to investigate whether the Scottish Government’s decisions violated resident’s rights.

In response, the SHRC has said an inquiry that has been promised by the Scottish Government needs to be fully independent and to report quickly.

‘The situation experienced in care homes raises a number of serious human rights concerns under Article 2 of European Convention on Human Rights (ECHR) and the right to life,’ the SHRC said in a statement.

‘Human rights law is clear that everyone’s right to life must be protected by law and the state has a duty to take action when threats to life occur.

‘The state has an obligation to undertake an investigation when life has been lost in circumstances that potentially engage state responsibility under Article 2.’

Other rights the independent body says should be considered include freedom from degrading treatment and the right to non-discrimination.

The SHRC is to publish further work on care homes to inform the scope of a future public inquiry, as well as an analysis of the effects of covid-19 in other areas of social care.

It is promising to engage with any public inquiry 'as appropriate'.

Scottish Labour leader Richard Leonard said: "I welcome the Scottish Human Rights Commission's statement, which raises highly significant and potentially grave questions about both the situation in our care homes and whether the Scottish Government has exercised its duty to protect Scotland's most vulnerable citizens.

"The Commission is right to call for the public inquiry to be independent, prompt and determine responsibility for the serious failings in our care homes, as well as for it to be based on a human rights framework. Ministers should now confirm that they will adhere to these principles."

A Scottish Government spokesperson responded that human rights have been 'at the core' of decision-making during the pandemic:

'The loss of life in our care homes because of COVID-19 is a tragedy. Everyone who has died from this virus was a unique and loved individual whose loss is a source of grief to many people.

'The Scottish Government has always placed the upholding of human rights at the heart of its approach and since the start of this pandemic our priority has been to save people’s lives, wherever they live. We have taken firm action to protect care home staff and residents as far as is possible.

'The Scottish Government is not involved in taking decisions about individuals’ care or the settings in which care is provided. A framework of legislation protects the rights of individuals receiving care and throughout this pandemic we have worked closely with our colleagues in the NHS, local government and the voluntary and independent sectors to ensure the needs and rights of residents in care homes are able to be met.

'Any person who has covid-19 - whether they are in hospital, a care home or their own home - should be treated as an individual. It is essential that human rights continue to be fully respected, protected and fulfilled throughout the current emergency.

“Human rights are absolutely core to all our considerations. All our decisions on the covid-19 response have been guided by the scientific advice available at the time and we continue to tailor that response as more is learned about the virus.

“We welcome the Commission’s recognition of - and willingness to contribute to - the public inquiry we have committed to holding.”

Earlier in the crisis, the Scottish Human Rights Commission warned that medical guidance for treatment of covid-19 patients could lead to older and disabled people being discriminated against.

There have been reports of older people having decisions about their care – and whether they should get medical treatment if they deteriorate – made without input from themselves or their families.

 

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