Last reviewed 8 May 2018

Jef Smith discusses the Care Quality Commission’s (CQC) good practice guide on equality and human rights.

For fairly obvious reasons, “outstanding” has become a persuasive word in social care circles. Outstanding is the highest grade awarded by the CQC, the level reached by only 1% or 2% of residential and domiciliary care services, so providers sit up when offered clues as to how their organisation can gain that coveted accolade. The CQC understands this attraction and is now scattering the word around its publications, confident that a sniff at the concept will have managers gathering eagerly around.

Equally Outstanding, the Commission’s good practice guide to promoting equality and human rights throughout health and social care, which was published late in 2017, uses precisely this gambit. Central to the document is a series of case studies of services rated outstanding. These relate to NHS services as well as to social care, but those having care agencies as their setting are particularly instructive in illustrating how the rights of users can be made central to practice.

The document’s views go beyond significant previous guidance is in spelling out the theoretical case for providers to pay close attention to equality and human rights. It explores four cases — ethical, business, economic and legal — and it does so in substantial and sometimes persuasive detail.

The ethical case

Central to the ethics of human rights in health and social care is the set of principles carrying the letters FREDA — fairness, respect, equality, dignity and autonomy. The key element in the ethical case is that care should be person-centred, which is surely just another way of saying that the service user’s right to take independent or autonomous action is paramount.

The business case

The business and economic cases, which are then considered in detail, seem to me to be closely related. If there is a difference, it is that the former looks at equality through the eyes of the individual provider, the latter from the perspective of the social care system as a whole. The documents argue, for example, that “Having a diverse workforce adds value”, that “Increasing staff equality will save money” and that “Working on equality and human rights can lead to greater efficiencies — and win contracts”. Increasing staff equality, it is suggested, will cut turnover, absenteeism and the need for disciplinary and fit-for-practice actions. If these claims are even half true, and the case is at many points well evidenced, employers should indeed sit up and take notice.

The economic case

As for benefits to the health and care sectors as a whole — the economic case — the document repeats the claim made by the Equality and Human Rights Commission that, rather than being a cost to be borne by society, social care can “contribute to economic prosperity”. This is achieved largely by “optimising the social and economic participation of people requiring support and their families”, but as usual with these sorts of sums the result you get depends on which items you count. If it were as simple as this analysis makes out, we would be home and dry on social care future funding, but we know that remains a fraught political issue. Governments of all persuasions still regard the provision of decent social care services for all who need them to be a net cost to the economy, and realistically it’s difficult to argue with that as a starting point without changing the whole terms of the debate.

The legal case

Finally, there is the legal case for equality and here things are somewhat less open to varying interpretation. Equalities legislation such as the Human Rights Act 1998 and the Equality Act 2010 focus on the responsibility of public sector bodies to fulfil specified human rights obligations. The problem for social care is that the majority of providers lie outside the public sector even when most of their business and the accompanying funding comes from governmental organisations, principally local authorities and the NHS.

There has been a gradual shift to close this gap. The Mental Health Act 2007 and the Mental Capacity Act 2005 were both accompanied by authoritative Codes of Practice which are applicable to all providers whatever their auspices. The regulations used as the basis for inspections by the CQC derive from the Health and Social Care Act and carry authority across all providers, commercial, not for profit, and public sector. Similarly, the remit of the Local Government Ombudsman was extended in 2010 to cover “all areas of adult social care — including privately arranged or funded care”; recently the office has added “social care” to its title to reflect the full scope of its duties.

In this latest document, the CQC argues that while the legal argument and associated processes such as equality impact analysis are helpful, they do not constitute the most persuasive case. Basic compliance with the law never took a care home or agency to outstanding status; thorough cultural and organisational change are what is required.

Barriers to equality

Eventually, however, the document gets round to acknowledging that advancing human rights can carry financial costs, though somewhat evasively it heads this section “Overcoming challenges”. It explores four lines of action which are responses to financial constraint — reduce service costs, reduce service demand, increase financial resources, and transformational service change. It discusses the first three, but mysteriously the fourth gets absorbed into a longer section on Empowerment.

One paragraph is headed “Ensuring there are no ‘unintended consequences’ of regulation that might negatively impact on human rights” and that, I am afraid, about summed it up. CQC’s intentions in highlighting human rights are very laudable, but this document is so densely written as to be off-putting. The cause is good, indeed essential, so I can only hope that other readers have a more positive experience.

What next?

  • To continue the focus on best practice, why not read our guide on How to prevent discrimination in the workplace.

  • You could update your Equality, Diversity and Inclusion Policy.

  • Train your staff on equality issues with the Equality Act Training Presentation