For many disadvantaged groups, including children, young people and those in need of care and support for a wide range of reasons, issues such as limited access to court review, removal of the public sector proactive duties and the lack of consideration of these rights and freedoms, is likely to have a significant negative impact.
 
The wording of the Articles in Schedule 1 of the Bill remains the same; however how they are applied, who by and against what threshold is set to change, and this has a number of wider consequences that will impact on those least able to stand up for their own rights within our communities and service systems. There are numerous areas of concern levelled at this Bill from many quarters, but the key areas of concern for health and social care / public service delivery include:

• S5 (2) Removal of positive obligations which will make our LA and NHS bodies less accountable to both citizens and the system of justice. We currently act to protect human rights breaches across the public sector, this includes providing redress, safeguards, protection or otherwise ensuring equal access to both social and criminal justice. If public bodies are no longer required to act in these circumstances, instead adopting a reactive duty, it is likely that a ‘he who shouts loudest’ (or who’s carers or parents shout loudest) management approach will be adopted across our pressurised public services, leaving those unable to speak up (or have someone to speak up for them) voiceless, including children and young people.

 

• S12 (5) Removal of interpretation of legislation for public authorities will mean that citizens have limited redress and opportunity to challenge determinations and decisions taken for/about them. There will be lesser requirements by these authorities to consider individual rights in their processes and procedures.

 
The government is currently in process of consulting or implementing four key legislation areas that the replacement of the Human Rights Act has the potential to fundamentally change, including –

• Mental Capacity (Amendment) Act 2019 – while changes to s4B of the Mental Capacity Act 2005 will have some impact on the public sector management of risk and safety, most notably in this primary legislation will be the introduction of the Liberty Protection Safeguards which will replace the current Deprivation of Liberty scheme as the ‘procedure prescribed by law’ to provide Article 5 safeguards. Since the 2014 Supreme Court judgement that set out the ‘Acid Test’ for determining a deprivation of liberty, many more individuals have had the safeguards and protections put in place that where previously absent.  The impact of this case was an exponential rise in requests for assessment and authorisations from both Local Authority and Court bodies, which gridlocked the system. It also had the impact of ensuring that those people whose views, wishes and situations controlled by others, have some right to recourse and redress that had not previously been available to them. Making the changes proposed in this bill will reverse this situation, allowing public bodies to make arbitrary decisions affecting people’s lives without the accountability that the current Act provides.

 

• Draft Mental Health Bill 2022: This bill was published June 2022 and sets out a range of amendments to the current Mental Health Act, including the primary statute to include deprivation of liberty as a condition of community compulsion, a position the Supreme Court declared was not possible without changes to the primary legislation. Whilst many of the additions to this bill include a greater level of choice, determination and representation, the limitations of these are embedded in our application of Human Rights, notably Articles 2, 3, 5, and 8. Without this infrastructure, which currently includes the positive duty and consideration of convention rights and protections for the individual, it is likely that risk and safety will become a driving force when, such as in the current climate, demand far exceeds the resources available.

 

• Care Act 2014 / Children & Families Act 2014: Changes in the resource allocation and management processes within adult and children’s social care (e.g. the cap on care costs, transitions and eligibility thresholds and the limitations (or otherwise) of resource determinations) will be impacted by the addition of preventing the courts from interpreting the Bill in a way that interferes with the authorities ability to perform it’s functions (s.5 (2)(a)), determine its allowance of finances and other resources (s.5 (2)(b)), or affect the operation of other legislation (s.5 (2)(e)), all of which have been the subject of debate in the caselaw under both this Act and in relation between it and the Mental Capacity Act.

 

• Equality & Inclusion: With specific reference to Trans rights, however this concern is also applicable in other equality areas, the legislation being brought forward to support what is known as the Conversion ban, whilst including sexuality is currently set to not include gender reassignment and as such in some areas such practices remain available, with significant harm being reported by those subjected to such practices. The thresholds of articles 3 and 8 are of particular concern across all the inclusion agendas, as currently these are one of a limited number of routes to challenge a wide range of equality and inclusion issues that would otherwise be subject to arbitrary or populist decision making.

 
The title coined by those lobbying against the current proposals of the ‘Removal of Rights’ bill is an accurate description for many of the most vulnerable in our communities. Whilst the detail of the Articles set out in Schedule 1 have not fundamentally changed, the detail of the Bill in which they are contained has wide-reaching impact in relation to the application of these rights across a variety of settings, including areas such as health and social care, minority rights and the boundaries in which our public bodies are required to take account of individuals rights and wishes. It also appears that this government has sought to minimise awareness of what the ‘Bill of Rights’ will mean in practice beyond the scope of immigration, courts, and criminal justice procedures. The scrutiny of this bill and its spirit will be an essential part of the legislative process and must be robust if we are to protect against the erosion of civil rights for groups who are unable to articulate or otherwise effectively represent their own interests, views, and rights.
 
Daisy Long,
01/09/2022

This piece originally appeared in the DCC-i June 2022 Newsletter.

Pride in Social Work with Trans People?
I recently came out as non-binary at work. I’d angsted at trans friends about the decision and tried to ignore the feeling of inauthenticity tickling at the back of my mind for longer than I’d like to admit. Then there was a Government leak stating that trans people would not be included in the ban on so called “conversion therapy”. I realised that the importance of visibility as a trans social worker within mental health services outweighed my discomfort at asking colleagues to change the language they used about me and to maybe consider the existence of gender outside of a binary.

So what took me so long? The UK is an increasingly dangerous place to be trans. A 2020 Galop survey found that transphobic hate crime had doubled in the last three years, and that was only hate crime that was reported to police. The survey also found that only one in seven people felt able to report incidents of transphobia. In 2021 the Council of Europe Committee on Equality and Non-Discrimination published a report condemning “the extensive and often virulent attacks on the rights of LGBTI people for several years” in Hungary, Poland, the Russian Federation, Turkey and the United Kingdom (Ben Chikha, 2021:2). The report warned that the rights of trans and non-binary people are being rolled back in the UK leading to human rights issues, and that this is being propagated by politicians and others in positions of power. I’m in a position of privilege and relative power, but I can’t ignore this context. And unlike when being open about other aspects of my identity, I couldn’t be certain of support from my social work community.

Are trans rights a social work concern? We are in the midst of a moral panic that seeks to position the rights of trans people, particularly trans women, in opposition to the rights of children and cis women (Pearce et. al, 2020). Transphobic articles published by major UK newspapers and broadcasters portray trans people as sexual predators and pathologise trans people as deluded or mentally ill. A dip into the toxic morass of “Gender Critical” Twitter or a certain online forum for mothers could give the superficial impression that trans rights are a safeguarding issue. Given the current climate of polarised views and misinformation, and that research has demonstrated that social workers do not feel prepared by their training to work with trans people (Stevens, 2022), perhaps the lack of engagement around trans rights from (cis) social workers is understandable. However, trans rights are very much a social work concern.

Trans rights are human rights. Promoting human rights and social justice is core to social work. It’s woven throughout our codes of ethics and professional standards. BASW’s 2021 position statement on social work with trans people was a welcome interruption to the social work silence on trans issues. It highlights that opposing the oppression, stigma, discrimination and abuse that trans people face is in keeping with the BASW code of ethics and the social work purpose to uphold human rights (BASW, 2021). Trans people face barriers to all forms of healthcare, have higher levels of self-harm and suicide, are more likely to be unemployed or in low wage jobs and more likely to face homelessness than the general population (Pearce et. al 2020, Galop 2020, McNeil et. al 2012).

The 2021 Council of Europe report states that transphobia in the UK breaches Article 14 rights. In 2020 Women and Equalities Minister Liz Truss spoke about reforms to the Gender Recognition Act 2004, mistakenly conflating the provisions of the Act with enabling access to “single sex spaces”, saying that “appropriate checks and measures” need to be in place regarding who accesses these spaces. This poses questions about self-determination and Article 8 rights.

Trans rights are your rights. Attempts to challenge or remove rights from trans and non-binary people also impact the rights of cis women, children and other members of the LGBTQ+ community. The main proponents of the “Gender Critical Movement” are predominantly white, middle class, affluent people in positions of power with platforms in the press, universities and parliament. This movement does not represent the interests of working class, racialised and/or minoritised people.

The Bell & Anor v. Tavistock & Portman NHS Foundation Trust case briefly (from initial judgement in 2020 until being overturned on appeal in 2021) set a judicial precedent that overrode Gillick Competence with potentially dire consequences for under 16s’ bodily autonomy. Let’s not forget that Gillick v West Norfolk and Wisbech Area Health Authority related to access to contraception.

“Gender Critical” arguments against trans rights centre around biological essentialism, stating that women have “sex based rights” that must be protected (see Fair Play For Women, A Woman’s Place UK, etc., ad nauseam). Sex is presented as immutable. “Males” (incorrectly including trans women) are presented as stronger and biologically predisposed to sexual violence. “Females” are presented as fragile, vulnerable and in need of protection, reminiscent of outdated, misogynist notions of the ‘the weaker sex’ (Pearce et. al, 2020). Some “Gender Critical Feminists” go further to define womanhood by the ability to reproduce (e.g. Suzanne Moore in the Guardian, 2019), previously the preserve of anti-choice, fundamentalist religious organisations.

Other “Gender Critical” groups state that exposing school children to information about gender and sexual identities (e.g. through the Stonewall School Champions programme) is a safeguarding concern, at times equated to grooming. As someone who attended school under section 28, this is uncomfortably familiar.

What can social workers do?

• Take an interest and build knowledge: there is a resource list below to get you started, attend training or request it if not offered by your employer, training delivered by trans and non-binary people is best.
• Legal literacy: Equality Act 2010 (gender reassignment is a protected characteristic), Gender Recognition Act 2004 (doesn’t actually have anything to do with who uses which changing room or toilet as that is already a matter of self-identification in the UK; a Gender Recognition Certificate changes the gender marker on the person’s birth certificate- name change, passport, bank account, etc. can be done without a Gender Recognition Certificate; it’s illegal to ask to see someone’s certificate), Human Rights Act 1998 (Art. 3, Art. 8, Art. 14, among others). Increasingly evolving case law, e.g. Bell v. Tavistock.
• Relational skills: a social work strong point! Approach people with respect, curiosity, compassion. Focus on empowerment and promoting autonomy. Let the person tell you how they identify and how they would like to be addressed, if in doubt ask. Take a trauma informed approach.
• Social model: another social work strong point! Being trans isn’t the problem, institutional transphobia is the problem. Being trans is not a mental illness.
• Advocacy: challenge transphobia at work, on behalf of service users, in social contexts.
• Listen to trans and non-binary people.

 
Useful Web Links / Resources

•  GIRES  (Gender Identity Research & Education)
• Mermaids UK
• The Beaumont Society
• Stonewall
• Gender Identity Clinic  
  
• Autism & Gender Identity (National Autistic Society)
• The Scottish Trans Alliance  (Trans and non-binary mental health)
• Gendered Intelligence
• Dr Ben Vincent (Research on gender identity)

• TRANSforming Futures
• LGBT Foundation

​Lizzie Furber (they/them)
DCC-i Associate & mental health social worker
​June 2022

Daisy Jackson-Bogg is a member of the British Association of Social Workers (BASW), an independent social worker and Director of DCC-I, an independent social work consultancy and Continuing Professional Development (CPD) organisation. Daisy is a practicing Approved Mental Health Professional and Best Interest Assessor, undertaking independent assessments and Serious Adults Reviews work alongside developing and delivering CPD for the health and social care sector.
​
Is it important to, or important for? A key question in strengths-based practice, an approach which is upfront and central in the part of the profession I occupy, adults and mental health. This is a question I can ask, and know to ask, because of the influence of the Human Rights Act. Without it, social workers, independent or otherwise (along with other health, social care and public sector colleagues), would still be making unilateral decisions based on what they believed was most likely to keep people safe, guided by what the moral majority thought was best (translated at points in our history as almost ‘warehousing’ people who didn’t fit the norm or who were seen as broken, weak or less than, those who were seen as not being able to ‘make a contribution’ to the society in which they live.

Whilst I agree in general terms that safety is a positive and important aspect of both civil life and specifically social work practice within that. I also recognise that it is a subjective term, one that varies according to the individual, context, and choices available. There is a balance to be struck between what society believes is best, and what the individual may want and/or need, and this is the position that adult social workers occupy on a daily basis.

For many of the people we work with, their view of the world is not the same as our perceptions as workers, or our health colleagues’ perceptions, or the perceptions of the wider society (including the press at some points!). We know that one persons’ safety can be another person’s worst fear, and without a framework to underpin our decision-making, social work responses would have no benchmark, no consistent way of navigating thorny dilemmas and would likely have limited consistency – based on the issue, the context, the players involved and the values of the practitioner rather than a sense of fairness, respect, equity, dignity and autonomy (aka the FREDA principles, the key principles that underpin social work practice overall). While many would argue this is the case anyway (which I can’t deny in general terms, we don’t always get it right and people are not always acting with positive intent), what I believe we do have is a common understanding of how the state should support its citizens, and a mandate which requires us, as professional social workers, to intervene and challenge when individual or community rights are being interfered with or otherwise eroded. For me the Act is the authority that the profession rests, and relies upon, to deliver both our statutory and non-statutory duties, often without knowing that this is the case.

For me, social work sits on that boundary between the benefit of the many versus the benefit of the few / individual. We are both advocates for individual rights and, in some cases custodians of both individual and public safety. It’s a sharp double edge sword that we walk on, and for me, the Act is the constant that leads us through some thorny ethical dilemmas we (and the people we support) are faced with, often whilst managing conflicting demands, shocking resource deficiencies and subjective interpretations of need and risk. As an AMHP and BIA it is the cornerstone of practice, the very reason my role exists, it is the roots of professional social work practice, ever present but not always noticed.

Daisy Jackson-Bogg
8th December 2021