This week’s blog in our ’20 blogs for 20 years’ series is by Imelda Richardson, Chief Inspector, Care and Social Services Inspectorate, Wales. It takes a fresh look at the fundamental basis of service regulation in Wales, and nicely complements Kate Chamberlain’s contribution last week. Imelda argues for a completely different approach, based on individuals and their human rights, rather than one based on the services they happen to receive, or the setting in which care is provided. In the context of the current Green paper on service governance, the implications for an integrated approach to regulation are certainly thought-provoking.
Rethinking regulation(1) argues for a radical overhaul of regulation to meet the aims of health and care services. My proposal is to move from place/service based regulation to person centred regulation based on human rights(2). This would enable constant enduring rights across health and care, specific to your required wellbeing outcomes and, passported to wherever you are.
This approach empowers people to know and claim their rights; improving the effectiveness and accountability of regulators, commissioners and providers of services who are responsible for protecting and promoting those rights. Human rights based regulation would meet the fundamental values; dignity, autonomy, equality, fairness and respect. Regulation based upon citizen’s human rights enables them to have personal responsibility for their wellbeing.
Each care provider at any point would evidence human rights based legal duties for their service, taking us beyond service definition of regulations to a person centred and more flexible rationale for established, new and emerging health, housing or social care services. This could determine what regulation people require for integrated services such as Extra Care Sheltered Housing, where accommodation is registered by the local authority, domiciliary care by the social care regulator but both services may be provided by the same provider.
The Equality and Human Rights Commission(3) inquiry found serious systemic threats to the human rights of older people who needed or used home care. They highlighted the role commissioners of services can play in the promotion and protection of human rights through their procurement and monitoring of home care. The Commission found a lack of awareness among public authorities with responsibility for home care services about what compliance with the Human Rights Act means in practice. They established a framework to assess the risks to human rights in home care services, which focus on the areas of dignity and security; autonomy and choice; privacy, social and civic participation.
The statutory framework would establish and clarify the roles and responsibilities of relevant parties by reference to a citizen rights based model.
Article 21 of the Convention on the Rights of Persons with Disabilities is concerned with freedom of expression, opinion, and access to information. The example shows how a well being and human rights approach to regulatory activity, taking account of the provisions of article 21, could work in practice:
Citizen: I have the right to information, in Welsh, language of choice or other means (eg Braille, British Sign Language, Makaton), about any changes to my care service.
Provider: I have a legal duty to consult with people in the language of their choice, or using other means of communication, about changes in their care service and report on the consultation to the regulator/inspectorate.
Commissioner: I have a legal duty to keep the people informed, in the language of their choice, or using other means of communication, about changes in the contract for their care and care funding.
Regulator: We have a legal duty to ensure there are no barriers to access to information to people using services and that the provider and commissioner are compliant in respect to their respective duties.
Regulation has developed from a risk, principles and rules base(4) to right touch(5), all of which contribute to the development and improvement of regulators work, however human rights based regulations are objective, taking into account the effect on all who are involved and empowering people to exercise their rights for themselves.
1. Harry Caplan, Professional Standards Authority, Rethinking Regulation, August 2015
2. Imelda Richardson, Four Nations Seminar, 12/11/13
3. Equality & Human Rights Commission (EHRC), 2011.Close to Home and EHRC,2013 Close to Home Recommendations Review.
4. Better Regulation Executive, 2000, Five Principles of Regulation
5. Council for Health Care Regulatory Excellence, 2010, Right Touch Regulation