Request for human rights-based inquiry into residential care experiences during Covid-19 pandemic

Mar 21 2023 Posted: 17:22 GMT

On 22 February 2023 the voluntary advocacy group, Care Champions, along with the Human Rights Law Clinic at the Irish Centre for Human Rights (ICHR) and numerous other concerned organisations, made a submission - Care Champions letter to IHREC 22-2-23- to the Irish Human Rights and Equality Commission (IHREC) regarding the need for a human rights-based public inquiry into the experiences of people in residential care and their relatives and staff carers during the Covid-19 pandemic. 

The joint submission - Care Champions letter to IHREC 22-2-23- requests that IHREC use its discretionary power under section 35 of the Irish Human Rights and Equality Commission Act 2014 to initiate a human rights-based public inquiry. The joint submission contends that the statutory criteria for such inquiry are satisfied, in that:

  1. there is clear evidence of serious and systematic human rights violations of people living in residential care and their relatives and staff carers during the Covid-19 pandemic, resulting from (among other things) deficient state regulatory structures, resource provision, strategic planning and intervention; 
  2. there are ever-mounting expressions of grave public concern regarding the experiences of people living in residential care settings and their families, and staff, during the Covid-19 pandemic and the need for an accounting and for institutional reforms to guarantee non-recurrence; and 
  3. it is necessary and appropriate for IHREC to hold a dedicated public inquiry into the experiences of people in residential care, bearing in mind (i) the entitlements of the people affected to individualised investigations and to be centrally included in the design and proceedings of an inquiry, (ii) the breadth of the Constitutional and human rights issues involved and the established expertise and mandate of IHREC, and (iii) the potential for a dedicated IHREC-led inquiry to support the broader, general state inquiry into Covid-19 responses that the Government has promised. The submission makes detailed reference to IHREC’s statutory powers to include affected people in its information disclosure and other investigation processes. 

The joint submission highlights the State’s legal obligation to protect the right to life by taking practical steps to guard against reasonably anticipated risks to life in social care settings; relatedly, it notes Ireland’s duty under Article 11 of the United Nations Convention on the Rights of Persons with Disabilities to take ‘all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including…humanitarian emergencies and the occurrence of natural disasters.’ Additionally, among other legal obligations, the joint submission draws attention to the State’s absolute duty to prevent inhuman or degrading treatment, and its obligation to have in place an effective framework to prevent arbitrary detention and ensure respect for private and family life.  

The joint submission notes that the very first recommendation in the Final Report of the Oireachtas Special Committee on Covid-19 Response was: ‘That a public inquiry be established to investigate and report on all circumstances relating to each individual death from Covid-19 in nursing homes.’ The submission also highlights the Covid-19 Nursing Homes Expert Panel’s concerns and HIQA’s receipt of thousands of communications regarding the impact of visiting prohibitions, communication vacuums and safeguarding lacunae on people’s treatment in residential care settings and families’ experiences. The submission refers to IHREC’s previous reports on the lack of effective human rights protections for people experiencing and working in residential care during the Covid-19 pandemic, and the submission highlights IHREC’s particular expertise regarding human rights-based care provision. 

The joint submission relies in part on research carried out by ICHR Human Rights Law Clinic postgraduate students, Erin Nic an Bhaird, Freya Middleton, Quinn O’Mahar and Charlotte Brouxel, supervised by Dr Maeve O’Rourke, Judit Villena-Rodo and Muriel Moore. The ICHR students gathered testimonies of bereaved relatives and analysed these from a human rights law perspective; they similarly analysed interview excerpts provided with families’ consent by postgraduate student of Applied Psychology at University College Cork, Graham Gillespie. 

Co-signatories to the joint submission include the Irish Dementia Working Group, the Dementia Carers Campaign Network, Age Action Ireland, the Alzheimer’s Society of Ireland, the Irish Association of Social Workers, faculty members of the School of Applied Psychology at University College Cork, and Dublin City University, and members of CareVisions Project (University College Cork), the Nursing Home Quality Initiative and Psychologists for Social Change.

Previous related interventions by ICHR faculty and postgraduate students include: 

  • Submission to Oireachtas Special Committee on Covid-19 Response: Nursing Homes and Other Institutional Care Settings: A Framework for Examining the State’s Response to the Covid-19 Pandemic (May 2020)
  • ICHR Submission to the United Nations Human Rights Committee for the List of Issues Prior to Reporting in respect of Ireland (August 2020)
  • C Brouxel, T Herbert, F Middleton, E Nic an Bhaird, Q O’Mahar and M O’Rourke, ‘Human Rights Norms Relevant to the Treatment of Care Home Residents during the Covid-19 Pandemic in Ireland: A Preliminary Research Report for Care Champions (Irish Centre for Human Rights, January 2023)

In January 2023 the United Nations Human Rights Committee published its Concluding Observations on Ireland’s fifth periodic report under the International Covenant on Civil and Political Rights, in which it stated:

29. The Committee notes the information provided by the State party with regard to the response to the COVID-19 pandemic in institutional care settings, including in nursing homes, and welcomes the ongoing review of its response and regulatory framework. The Committee, however, is concerned about the rate of deaths related to COVID-19 in nursing homes throughout the course of the pandemic, exacerbated by the collective living arrangements in long-term institutional care. The Committee is also concerned by reports of younger persons with disabilities being accommodated in nursing homes (arts. 6–7).  

30. The State party should continue its efforts to carry out a comprehensive review of the regulatory and protection framework for social care services to ensure that older and structurally vulnerable communities have adequate protection and support. It should also put measures in place to guarantee that the inspection mechanisms are adequate, independent, supported by a human rights framework, and incorporate all public, voluntary and private health and social care providers. The State party should also continue to take targeted measures to protect older persons from COVID-19 and/or other major public health emergencies.