Back to Articles


The Right to have Rights in Care Homes

This article will explore the definition of the term human rights in relation to individuals who live in care homes.

Human rights are central to humane life (Pence and Cantrell 1990). They determine in nursing, what care individuals receive and what care people give.
There is much debate about the definition of the term “rights”. It is indeed affected by many factors including what rights are, what the purpose of living is and whose rights are being considered. For example, hedonistic utilitarians believe that the ultimate goal in life is happiness (Beauchamp and Childress 2001 ) which affects what rights are claimed and what rights are fulfilled.
Most authors agree that “rights” refers to claims or entitlements (Veatch 1985, Thompson et al 2006). This may include the right to receive something (positive rights) or not to receive something (negative rights)(Thompson et al 2006).
Rights may further be legal or moral entitlements. Legal rights depend upon the law; moral rights depend upon principles and facts (Lyons 1994). A right may be legal but not moral (George 1993) for example, opponents of abortion might say that it is a legal right in some countries but not  a moral right. A right could also be moral but not legal for example, sharing a chocolate bar with somebody.
Most authors agree (Veatch 1985) that having a right imposes a duty on someone else in respect to that right. For example, if someone has a right to receive pressure area care, a person has  a duty to provide it. Conversely, if  a person has a right not to receive pressure are care, a person has  a duty not to provide it. One exception may be smoking cigarettes ( Thompson et al 2006). If a person has a right to smoke, it may be questioned whether or not somebody has a duty to provide cigarettes or smoking facilities. The difficulty concerning smoking, is that smoking affects other people via passive smoking and their rights also must be considered.
Some authors argue that if a person has a right, he or she has a corresponding duty. For example, if he has a right to receive or refuse, pressure area care, he also has a duty to consider having pressure area care and the consequences of not having pressure area care. However, this consideration is disputed (Sieghart 1985). The duty itself, may also be deemed to be  a right; a person has a right not to consider having pressure area care. This may however, not be so in the relationship between resident and care provider. Being a resident, involves the acceptance of  a contractual professional relationship between the care provider and one receiving care. Indeed, if the resident is unwilling to consider the care offered by the care provider, the care provider may have the right to terminate the relationship. In medicine, for example, there are debates regarding medical treatment of people who continue to smoke or refuse to lose weight (Templeton 2005) .


History of rights
Human rights have always existed but not always been recognised or addressed. This is indicated by the barbaric treatments that occurred in the past in this country (Lane 1993) and still occur in some countries today. However human rights may depend upon what they are deemed to be or upon what is permitted. Some authors do not consider natural rights to exist (Bentham in Hart 1982 ) or moral rights for example. Indeed, Veatch 1985  considers whether or not rights exist at all.
A historical analysis of rights indicates that the term is rooted in various fields. These include philosophy, politics, social and religious.
Reviewing the history of human rights will enhance understanding of  rights and indicate upon what basis they are founded. The history of rights will also be linked to the nursing home sector.

A number of major events have influenced the development and recognition of human rights. For example, the second world war lead to the creation of the UN Declaration of Human Rights in 1948 in response to Nazi war crimes. Whilst this is not legally binding (Brownlie and Goodwin Gill 2006), a number of charters and Acts have been based upon it for example the Arab charter on human rights (2004) ( Brownlie and Goodwin Gill 2006).There are also Acts referring to specific groups of people including the United nations principle for older people (1991), convention on rights of the child (1989).There have been a number of Acts prior to this. The first human rights Act is regarded as being the Magna Carta in 1215 (Klug 2000). Yet this protected the rights of Aristocracy, not of all people. The American and French revolution in the 18th century  were particularly influential regarding rights (Maritain 1949) leading to the identification of the American declaration of independence 1776 and the French declaration of the rights of man and citizen 1789.However, these declarations excluded women. Wollstonecraft (  1975) fought for the recognition of women’s rights saying “It is time to effect a revolution in female manners- time to restore them to their lost dignity – and make them as a part of the human species .” With similar aims, Olympe de Gouge wrote to Queen Marie Antoinette in 1790 (Ishay 1997). Similar struggles for rights concern slavery, Jews , homosexuals, children (Ishay 2000) and animal rights (Singer 1995 ). Much can be learned about rights in general by considering their claims. For instance, animals it is argued, possess rights because they suffer (Bentham in Hart 1982 ) counteracting the belief that they do not have rights because they are not rational and thus supporting the rights of such people as confused, comatosed or young children.
All Acts have relevance to rights as they affect what actions people may or may not legally perform. Acts of relevance to rights in nursing homes include the Poor law Act which provided the historical basis for long term care , Care standards Act, Human Rights Act.
In June 2007 a case reached the courts involving the Human Rights Act 1998, concerning the threatened eviction of  a resident in a  home at Birmingham . The Human Rights Act was deemed, by the House of Lords, not to apply to privately owned care homes which were not considered to be public institutions. This was opposed by Age Concern who submitted a Bill but lost. This decision has implications for all private establishments. The implications for local authority residents who reside in privately owned care homes  were considered but again, the Human Rights Act was deemed not to apply to them. In March 2008, the Government agreed that the Human Rights Act is now to apply to all private homes.
Without the Human Rights Act, the rights of residents in care homes are protected only by the Care Standards Act. Some homes do possess individual charters of residents’ rights. There are national charters of residents rights in America, Australia and Denmark  which specify further what the rights of residents are. The Care Standards Act broadly refers to such rights as dignity, privacy but is not specific enough and is open to interpretation by different care home inspectors.
A number of authors have identified various stages in the development of rights (Ishay 2000, Klug 2000 ). However, all factors have relevance for rights. Consider for example the present day debate regarding global warming.


Religion
Religious codes often provide  a basis for considering rights (Ishay 2000 ). Codes may determine the behaviour of people for example the Ten Commandments “Thou shalt not kill”. Such codes do not address rights as such . However there is  a movement away from religious influences in the UK and something else is now required to maintain moral standards (Klug 2000).


Philosophy
An exploration of the philosophical basis of the term rights is essential when considering rights as a concept. Early Greek philosophers did not refer directly to rights for example Kant but do refer to the terms rights and good or allied terms such as duties ( Frankel Paul et al 1984). It is stated that Thoreau made the earliest reference to “right” in the 18th century (Halstead 2005) but there are earlier references for example Marcus Aurelius (100 century AD  ) or  Locke (1698) .In the 17th century, following the French revolution, the rights of man were addressed by Paine , proposing that all men have equal rights including natural and civil. Yet the term was not analysed by anybody at an early stage; there was very little reference directly to the term. Indeed there are earlier references to allied terms such as morals for example Plato (800 BC). There was at an early stage, some distinction between moral and legal rights with Bentham declaring natural rights to be “nonsense on stilts” in the 17th century. The term rights has been analysed  as a concept (Roshwald 1959, Golding 1968, Reckling 1994  ).All authors concluded that there is  a debate regarding the definition of rights.Rights have been written about to a greater degree since 1946. More recent philosophers include singer. Allied terms have also been addressed including ethics (Seedhouse 1988), autonomy and dignity. Since the Human Rights Act there have been a number of publications addressing the legal aspect of rights such as Edmundson et al 1998.
Public pressure groups also influenced the development of rights particularly during the twentieth century. For example Amnesty was established in 1961. This began by protecting the rights of prisoners and was consulted by the United Nations. It also campaigned for women’s rights, the rights of the child and refugees. Other groups include Age Concern or Help the Aged.


“Rights” and care homes.
The meaning of “rights” in care homes has not been explored. Therefore there is a lack of definition and recognition of residents’ rights in care homes. Residents may not recognise that they have rights or what they are. Nor may staff and other individuals. There is evidence that this is the case (Watson 2002 ).
The term “rights” has enormous implications for care homes. Many issues arise concerning rights and the care of older people in care homes (Dimon 2006) and there are dilemmas about what action to take in such situations. Consider for example, residents who want the radio turned on in the lounge and residents who do not.
The term rights therefore,  is very subjective and undefined. The term rights has been analysed  as a concept (Roshwald 1959, Golding 1968, Reckling 1994  ).All authors have concluded that there is  a debate regarding the definition of rights. Rights have been written about to a greater degree especially since 1946 following the atrocities of the Second World War. More recent philosophers include Singer (1995). Allied terms have also been addressed including ethics (Seedhouse 1988), autonomy and dignity.  The term rights involves multiple perspectives from all individuals involved.


Conclusion
Care homes accommodate vulnerable people, who depend upon care provided by care workers. Some residents may indeed be unable to claim their rights due to such factors as confusion; this ought not to mean therefore, that they do not possess rights. If people are regarded as not having rights this may well imply that they are less of a person which may therefore contribute towards malpractice. The expectation of care by an individual and rights are inversely related. If individuals are aware of their rights this may increase their expectation of the care received. If the expectation of care is low, individuals may consider that they possess few rights.
The need for care homes is increasing and it is imperative that the issues of residents rights is to the fore. However, rights must first be defined. The best people to contribute towards a definition of rights are the residents themselves. From this definition may arise  a charter of rights for care home.



[...click here to go to the top of the page...]