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Good policies often fail to make a real difference, hears Stephen Naysmith
A nurse alerted him one morning that his mother, who was attached to various tubes and monitors, had been found on the floor at 4am, after getting out of bed. When he asked why there were no bars to prevent her from getting up, as a patient who was known to be prone to agitation, he was told this was impossible "because of human rights".
"I thought the nurse was winding me up," Mr Miller recalls, but the nurse didn't know who he was or what he did for a living. "They said a bar on the bedside would restrict her right to liberty. I said, 'Her right to life is at issue here, put the bars up.'" Even then he was told the decision would have to be referred upwards.
Such issues are indicative of the muddle people can get into about human rights. But there are other issues which can impede the delivery of human rights on the front line of care.
One is economics, and the widespread perception that cost can sometimes trump quality when care providers such as councils and health boards are commissioning care services. The Scottish Human Rights Commission (SHRC), which Mr Miller chairs, has advised the Scottish Government about ways in which human rights can be integrated into the public procurement process, and this advice led to formal guidance.
"It is about making sure human rights are introduced at each stage, looking at the quality of care and not just value for money," Mr Miller says.
Even Government guidance cannot always ensure that what is delivered on the ground is compatible with real human rights. It could be that a bigger transformation is needed.
The SHRC is now taking the initiative and plans to offer the Scottish Government a National Action Plan for Human Rights, which will be delivered in a year.
It will highlight the cultural and possibly legal changes needed to address a situation in which Scotland's record on human rights law and policy is good, but the reality for many people is less convincing. The influence of human rights decreases the closer to real life you look, the commission says.
This is not about a lack of willingness or support, it is that not enough time and priority has been given to ensuring a cultural shift. This applies in many settings, including justice, housing and family life, but health and social care are useful examples.
"We are moving from elderly care homes to a situation where more people are in their own homes and along with that comes increased privatisation of their support services. This can mean more personalisation but an understanding of human rights becomes all the more necessary, because it's less easy to track what happens to people," Mr Miller says.
The process of developing a National Action Plan – like those used in some Nordic and European countries – is kicked off in a report published today.
Getting It Right? Human Rights in Scotland, examines eight aspects of rights in Scotland: dignity and care, health, where people live, education and work, private and family life, safety and security, living in detention and access to justice.
By examining key gaps in these areas, SHRC, along with others in civil society, aims to come up with a plan to fill them. Gaps come up all the time, he suggests, if you look at elderly care, from covert use of medication to inadequate visits and socialisation, or a risk-averse culture which limits opportunities for older people to experience a full life.
This is in line with what the public say if you consult them. "People told us their priorities: dignity is core, along with care of those who are the most marginalised, such as older people and those with mental and learning disabilities."
Problems arise, he argues, not because of a lack of willingness among those on the front line, but because not enough time or priority is given to changing organisational cultures. He knows this can be done, as a result of a project two years ago in which SHRC worked with the state hospital at Carstairs to transform the approach of staff on a rights-based model.
The question of rights for those at Carstairs, including those sent there by the courts, raise a perennial problem for the SHRC chair – the perception in the minds of members of the public, politicians and sections of the press that human rights affect mainly the least deserving.
Mr Miller believes it is based on a false contradiction. "There is a misplaced concern that the balance has shifted too much in favour of prisoners and offenders, with not enough given to victims' rights. But it should be understood that victims do have rights, and prisoners do too. They are not mutually exclusive."
While admitting there is a public relations issue here, he contends that the action plan he is developing will take human rights out of the criminal justice silo, where some have been content to abandon it. "When it is seen to be playing more of a part in the everyday life of people, it can breathe."
He also claims Scotland is in a better place with regard to human rights than other parts of the UK. "There is a much more mature understanding here than exists in the Westminster bubble. The British bill of rights which is being considered there: what comes out of that is likely to be regressive, weakening rights. In Scotland if you scratch the surface there is an acceptance of the fact that human rights play a valuable role."
Organisations and businesses should see adopting a rights-based culture as beneficial, he argues. "If staff and management can put themselves in the shoes of patients and ask, 'Is this policy proportionate or blanket and undue interference?' There could be wider benefits with fewer complaints being brought and better relationships with patients.
"I want human rights to be seen not as a risk to avoid, but as a way of improving care and the professional way it can be delivered."
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