Hello Everyone

Steve has been looking at the possibility of a challenge based on Article 6 Human Rights Act.
Human rights challenges to many things are very frequently made but because of the complexities of the issues involved and the complexities of the act itself many of these challenges fail.

The first thing to bear in mind is that not all the individual acticles of the Human Rights Act are mandatory,
meaning they have to be followed. Some are open to exceptions, or get-out clauses.

A very good example of this can be found in Article 8 of the Human Rights Act, which on the face of it does have important implications for those people who have been forced to sell properties to pay for care.
I am going to slightly go away from article 6 just to show you how complex it can get and then I shall return to my original theme.

ARTICLE 8

Article 8; right to respect for private and family life.

(1)

Everyone has the right to respect for his private and family life, his home and his correspondence.

(2)

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, ;public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Right I will try to make this simple. Note in the above reference to home! So that A person still has the right no matter where that person is to the right to home, even if that person is in a care home. He or she still has the right to a family life and a home, even if he or she cant be in it. This becomes more apt if this home is shared with someone who doesnt fall within the property disregards. That person still has a human right under article 8 to family life in that house.

So that when you get local authority trying to force a sale or putting an order on that property then they are in fault of article 8 and their actions are unlawful.

Or it would be if article 8 was mandatory, but it has these get out clauses which make the interpretation very complex indeed. Note the reference to "" the economic well being of the country "" and "" such as is in accordance with the law"".

But it gets more complex because this is not the end of the story. They ( LA/SS ) could argue that the selling of the property is for "" the economic well being of the country"" and is "" in accordance with the law"
The laws that deem LA/SS involvement in CHC care fee disputes.

But even that is not the end of the story:

THE DUTY ON PUBLIC AUTHORITIES SECTIONS 6,7 AND 8

Sections 6,7, and 8 concern the second of the two principle ways in which the HRA 1998 gives further effect to the convention rights in UK law. These sections impose a duty on public authorities.

* Section 6 makes it unlawful for a ""public authority" ( as that term is understood kin the act) to act incompatibly with the convention rights in schedule 1 HRA 1998, unless it is required to do so by a valid act of parliament.

* Section 7 creates rights to bring proceedings against public authorities if they act unlawfully under section 6,and

* Section 8 identifies the remedies that courts can order.

Now Steve has already made clear that no enactments or amendments have been passed through parliament to make charges for nursing care so therefore the core principles contained within the 1946 NHS Act and all subsequent
health acts ( the latter my emphasis ) are still active.

So therefore it could be said that as far as ARTICLE 8 is concerned and even though there are get-out clauses to the rights defines in that said article because the LA/SS have acted unlawfully ( because of the core principles of the health act ) then they are still in breach of article 8 and that their arguments "" economic well being of the country"" and "" and such as is in accordance with the law"" do not stand.

Whether that would be what a judge would consider correct?

That shows the difficulties with so much of human rights law.

But to return to article 6. This article really refers to criminal trials and the right to a fair hearing.
But its relevence is the same for any form of hearing ( such as a MDT/DST ASSESSMENT or A IRP meeting ).

Basically everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
Fairness is not defined in article 6. A range of particular rights have been implied, by the court of human rights, from the general concept of a fair trial.

The right to a fair trial, hearing or tribunal is absolute. There can be here no arguments regarding "" the well being of the economy"" "" or in the best interest of the nation"". This is a matter for the courts ( there is little deference owned to the executive or legislature). However the requirements of fairness, as understood by the courts, can be context dependent and subject to qualification...

Article 6 however does not apply to all trials,hearings or tribunals because for article 6 to apply the ""trial"" must be one which "" determines"" either;

* "Civil rights and obligations, or a

* Criminal charge

Perhaps the most important right in article 6 is the right of a person to be able to take his or her case to a court ( or a hearing etc ) for a fair hearing. This right is implied from the concept of a fair trial in Article 6 (1). At the heart of article 6(1) is the concept of right to an independent and impartial tribunal or hearing.
Its not enough for this to be truly independent and impartial? It has to be seen to be truly independent and impartial.

It is a question of appearance because there is no need to prove that a court or a tribunal has been biased or prejudiced in the way it actually decided any given case. Because the appearance of lack of independence or impartiality is enough. Under English law, the principles that courts, tribunals and other bodies should appear to be unbiased is part of general administrative law. There are rules of nature justice which can be given through judicial review and other proceedings. Natural justice has a strong and effective rule against the appearance of bias.

THE HUMAN RIGHTS ACT 1998

The rules of natural justice, in the law of England and Wales, recognise two tests for bias by a judicial body ( or any other form of hearing or review ).

* DIRECT PERSON INTEREST.

This is especially important for us when you take into account how the assessment panels are constituted.

"" Where a judge or tribunal member ( or MDT/DST or IRP member ) has a personal interest in the outcome of the trial ( or hearing ) he or she should be automatically removed from the case.


What do we get in the MDT/DST ASSESSMENT MEETINGS AND IN THE IRP MEETINGS?

Members of the panel who have no vested interest in the outcome?
Members of the panel who are totally impartial?
Members of the panel who are independent of any parties involved in the dispute?

OF COURSE WE DONT! THERE IS NO WAY THAT THESE MEETINGS ARE FAIR, IMPARTIAL OR INDEPENDENT.
Any impartial independent observer present would have to form the conclusion that from all factors and issues presented the assessment panel was not independent and acting in a fair manner.

This is contrary to Article 6 (1) and should be declared unlawful by Human Rights law and by English law.

Take the North Yorkshire case that I was present at the MDT/DST assessment; Cathy Eades the Care Cordinator of CHC for North Yorkshire and York PCT was clearly not an independent assessor because she was employed by the PCT we were fighting the case against. Nor was the Social care worker; she worked for Bradford and Airedale the other PCT involved in this action. By the rules of article 6 (1) both of those two people should not have been allowed to be on that panel. There presence was unlawful because of ARTICLE 6 (1).

To comply with ARTICLE 6 (1) These panel members should be totally independent of the PCTS involved.

Ideally comprising two independent doctors ( without any PCT involvement ) a person versed in medical and social service law, who also has extensive CHC knowledge, a clinical psychologist and a member of the nursing profession.

Remember article 6 is not about "" In the best interests of the economy " it is about how the hearing is constituted and how it behaves in accordance with law.

Again in the North Yorkshire case Cathy Eades by denying us the right to use health-care monitoring in the 12th domain of the DST was preventing us to present something that could have affected the outcome of the final decision thereby again making the meeting unlawful under article 6. So too was her deliberate attempt to introduce her own interpretation of the four key indicators in order to yet again try to turn the verdict against us.

Well I think thats enough for one night.

Hope this adds light to you Steve and I can do a lot more depth on this, and I hope it interests others enough to make comments on it.

The only thing thats not so good is what it would cost to bring this challenge. I have a good idea about the sort of costs that Steve referred to when he asked about it. In some ways this is what they are hoping for:
that the heavy cost of bringing such an action will put anyone off from doing so. Especially as victory is never certain in complex areas. Although article 6 is far less complex than some of the other articles.

It may be a good idea to try to involve other organisations, not just based in the UK, to take up the fight and help fund the action. I dont think we can rely very much on many of the obvious charities to become involved becuase many rely on non-public funding to help them keep running.

Very kind regards Ian