By Claire Martin, 23rd May 2021
In a previous I discussed a hearing before Mr Justice Hayden (COP 11919290 Re LW 29th March 2021) about a woman I called Lucy, her sister (who I called Angela) and an urgent decision about where Lucy should be discharged to, from a current inpatient stay (due to a fractured leg, sustained at her previous care home).
Although that crisis had been occasioned by the fractures, the court proceedings began back in April 2020. Angela wanted Lucy to live with her. She wanted to care for her on a full-time basis – and she wanted to be the primary decision maker, so was seeking a court-appointed Deputyship. A key aspect of decisions around Lucy’s care, as presented by Ruth Kirby QC (counsel for Angela) at the 29th March hearing, was the Local Authority suggestion that living with her sister or family would compromise Lucy’s ‘dignity as an adult’. It was submitted to the judge, by Ruth Kirby, that this interpretation of ‘dignity’ was given undue weight in assessing best interests care provision for Lucy. In the previous blog I started to wonder how the concept of ‘dignity’ is framed and operationalised in our systems of law, care and Human Rights, and this piece expands on these thoughts. I am a psychologist, not a philosopher or lawmaker: these are my initial speculations and I invite commentary.
What do we mean by ‘dignity’?
The OED defines “dignity” as: “The quality of being worthy or honourable; worthiness, worth, nobleness, excellence.”
Etymologically, the word stems from the Latin ‘dignitas’, meaning “merit” and “to be worthy”. My take on this is that the origins of the word would suggest that dignity is something all humans have inherent in their humanity – it is a ‘quality’. Dignity is a given. We simply have it, just like we have a heart, and no one can take it away.
In a review of a 2017 book called Dignity: A History edited by Remy Debes, the reviewers summarise:
“At a certain moment in the history of ideas, dignity became attached to “humanity”, and acquired a foundational moral value. … Christianity taught that original sin blemished human dignity and that only Christian grace offers some restoration. For many centuries, this move rendered dignity … irrelevant as a moral property of all humans. People were expected to behave with dignity and to accept the grace of the Church and her teachings; but they did not hear about any treatment owed them solely because all human beings had dignity. … The notion of “the” or “a” dignity of man surfaced in the Renaissance … The meaning might not have always been the same, but the term has persisted. Interactions with the indigenous people of the New World required European law and theology to come to grips with the moral and legal status of real humans, a sharp departure from the medieval discourse on “monstrous” races and people. In the nineteenth century, “dignity” was a motivating theme in the Latin American struggle for independence from Spanish colonialism. In 1945, four countries mentioned “dignity” in their constitutions. In 1948, the UN Declaration of Human Rights celebrated “human dignity” as its foundational value. By the end of the millennium, over 150 countries incorporated human dignity in their constitutional law. About ten years ago, an unprecedented wave of scholarly books on human dignity in ethics, bioethics, political theory and law began rising.”
This paper by Saxena in 2015 describes more recent, 20th century, uses of dignity such that:
“it was introduced into legal frameworks in the twentieth century through the Universal Declaration of Human Rights (UDHR) in its first article which enshrined the notion of universality of human dignity in international law, by stating that, ‘All human beings are born free and equal in dignity and rights’.”
So the idea that we are born with dignity, if this is how it has come to be seen, would suggest to me that it is not something that can be removed – it can be attacked, violated, humiliated perhaps, but not removed. How, then, can it be a ‘right’? It’s leading me to think about who gets to define ‘dignity’ and the political history of its use. The review of Debe’s book, above, suggests that the Western social and political framing of dignity has become dominant – and what I have read suggests that this has then filtered into law and its interpretation, particularly in Western countries. From that, its use will filter into social practices including health and social care via case law. I wonder whether Lucy’s Local Authority was basing their idea of ‘dignity as an adult’ on any previously contested cases or on written guidelines that they adhere to?
That line – ‘dignity as an adult’ – suggests some fairly fixed criteria. It seemed, for this Local Authority, one benchmark is ‘not living with one’s parents’. They are not able to contribute to this blog – so of course this might not be how the Local Authority interprets it – it could be that the particular staff involved were of this view, and were not reflecting an organisational standpoint. However, to hold this position, especially in a court hearing, as a reason why a person should not live in a particular setting seems to be a view that is held strongly enough to prohibit consideration of that option. In short, whilst the Universal Declaration of Human Rights states that “all human beings are born free and equal in dignity and rights”, authorities and organisations have tended to qualify dignity in terms of a set of criteria. Any such qualification by definition undermines the rights of all persons to claim dignity.
For example, the qualification of dignity in relation to living independently from one’s parents normalises white, Western households. What does that principle say about people from communities who live in multi-generational households as a norm, both in the UK and around the world? Or people who (with capacity) choose to live with their parents, for whatever reason? How has the human need for care and community with other people become a criterion for assessing dignity?
Dignity in law
Dignity also seems like a very tricky concept to use in law. How can it be operationalised? I got a bit lost down the rabbit hole of the legal approach to human dignity in the UK, and legal scholars would be much better placed to discuss this than I am!
I did find an article from 2012 by Conor O’Mahony really interesting: “There is no such thing as a right to dignity.” His end point (I think!) is that the idea of ‘dignity’ as a right should be abandoned and separated from rights that can be measured and put into operation more easily – such as autonomy and equal treatment. He quotes William Binchy (an Irish lawyer): “[i]ts meaning depends greatly on the philosophical premises of those who invoke it; the range of such premises is so broad that ‘dignity’ can have completely opposing connotations.”
The concept of dignity has been used variously as something which people have a human right to, and also as something on which human rights depend. It can’t be both really. My – probably simplistic – take on the subject, is that human rights are not something that just exist, out there: we organise to agree what ‘rights’ we give to one another and we invent structures to hold organisations and states to account for upholding (or not) those rights. I’m not sure how useful it is to place dignity as a right – as William Binchy says:
“As a baseline for recognizing our shared humanity, equal human dignity has a ringing appeal. But in concrete cases, human dignity will often fail to provide any specific guidance precisely because there are many different and conflicting conceptions of what dignity may require.”
Dignity in care
What about ‘dignity’ in our systems of care? What is it meant to look like? How do we know if it’s happening?
In a quick internet search on dignity in health and social care, I could not find any principle where ‘dignity as an adult’ is conceptualised in the way it seemed to be for Lucy.
In the Health and Social Care Act 2008, ‘Regulation 10’ is entitled ‘Dignity and Respect’ and has the following guidance: “Staff must respect people’s personal preferences, lifestyle and care choices“.
The 2009 Royal College of Nursing document, Dignity in Healthcare for People with Learning Disabilities, reads like this:
So with reference to that third bullet point – not too far away from one’s family and friends, but not too close either!
Whilst it might not be known exactly what is Lucy’s personal preference for where she lives – it is likely that increasing distress, behaviour that others find challenging, and an unwillingness to eat are communications of dissatisfaction with something about her current circumstances, warranting further assessment. I would argue that it is narrow and selective that a rule or idea about what it means to be ‘an adult’ might outweigh other relevant factors in making a decision about someone’s life – such as a person’s relationships and where they evidently feel safest and most at ease.
- “ …treating [people] as equals and providing any support they might need to be autonomous, independent and involved in their local community..”
- “Dignity in care means providing care that supports the self-respect of the person, recognising their capacities and ambitions, and does nothing to undermine it.”
This would suggest that, when thinking about the concept of ‘dignity’ in care settings, there is something crucial about the lens being from the perspective of the cared-for-person – when and how do they feel safe/respected as equal/autonomous? how do we know this? which relationships are key to this safety/equality/autonomy? what are the conditions to enable this person flourish in all ways possible? This might be very different for each of us. Is it possible that services/others impose a meaning of ‘dignity’ on a person, from the perspective of their own lens? So: ‘X is an adult – it’s not appropriate (dignified) for them to be living with their family’.
In older people’s services there has been contention over doll therapy for people with dementia and whether this practice compromises ‘dignified’ care. There’s a body of research around the benefits and concerns of using dolls for people with dementia as part of their care. This paper by Alander, Prescott and James highlights that: “Clearly, there is an ethical tension in doll therapy involving dignity, autonomy and benefit. … At the heart of the ethical dilemma is how other people view and respond to doll therapy within the care home settings”.
Who could argue that ‘dignity’ should not be maintained? It all feels a bit vague – and entirely subject to individual, system and cultural views on what constitutes ‘dignity’. This brought to mind Ernesto Spinelli, a psychotherapist and existential theorist, and the difficulty in defining ‘therapy’ (see 1994). He invokes Wittgenstein’s argument for ‘open concepts’ and the example of games:
“While it may seem, at first, to be the easiest thing in the world to define a game, nevertheless, as Wittgenstein so ably showed, this is far from the case. For the concept of games is an open one in that, on closer inspection, there exist no features that are common to all games. … While all games share some properties with some other games, no games share all properties with all other games. … Similarly, it may well be far more useful and satisfactory for us to ask ‘When is therapy?’ rather than ‘What is therapy?’. For in doing so we can then begin to focus on the contextual features of therapy rather than continue with our vain attempts to eke out their definitional properties” [pp42-44]
So, might it be more helpful to query ‘When is dignity?’ rather than ‘What is dignity?’? When is dignity maintained for this person, now? When are the ‘signs’ of dignity visible (such as being treated equitably, feeling safe and respected, being able to have a ‘voice’ and be heard and exercise choice as far as it is possible, in whatever way you can communicate – embodying the ‘autonomy’ that contemporary ideas of dignity seem to hold key)? In other words, what are the ‘contextual features’? If we know when this person’s dignity is maintained we can therefore know how to recognise environments and situations when their dignity is disrespected, attacked, ignored, humiliated – and perhaps our focus should be on what those contexts are for each individual person.
It is hard to accept that Lucy’s ‘dignity’ is maintained when there are increasing incidents of distress and communications through behaviour that, for her, are indications of lack of comfort or a sense of safety (e.g. smearing faeces). If we think about Maslow’s theory of the hierarchy of our needs, we heard that in recent times, Lucy often stopped eating and drinking, her sleep was affected, and she could become dehydrated. These aspects of her experience are the most basic of needs in the hierarchy – perhaps when dignity is maintained for any of us, the foundations of our needs must come first, and arguably before any externally imposed definition of what living as an ‘adult’ entails.
The SCIE website further talks about the role of relationships in dignity in care:
“Surveys involving people who receive or provide social care frequently emphasise relationships above all: between the person needing care and their carer, within groups in residential care, and between the people receiving care and the wider community.”
Relationships and their vital importance to our healthy functioning as humans (our dignity?) are conspicuously absent in the quickly accessible literature I have found on the subject. The ideas seem to centre on autonomy, independence and self-determination. All well and good – yet we know that these aspects of our being are only possible within relationships (see, for example, Why Love Matters by Sue Gerhardt) that foster our basic needs and allow us to move up the pyramid to these more lofty ideals.
From the information at the hearing, as well as their idea of what defines ‘dignity’ as an adult, the Local Authority’s position seemed to focus on Lucy’s physical and rehabilitation needs to inform their view on a best interests’ environment. Whilst these things are, of course, important, there seemed a similar lack of weight given to her relationships, and how important they might be for her sense of safety, as foundational to facilitate engagement with physical interventions to assist daily living, let alone further rehabilitation of her injuries. In Maslow’s hierarchy, a sense of safety could be seen to be a prerequisite for Lucy to be able to engage with rehabilitation. Dignity could be seen in the psychological safety of her environment.
Alex Ruck Keene, barrister with expertise in the law and mental capacity, has recently blogged about the use of the concept of dignity in law:
I think I would agree with this, and further argue that an objective definition of dignity is not actually possible. As I said, I am not a philosopher, or lawyer, and have just been thinking more about this concept for this blog and for what it means in my work with older people – and I have come to an (interim) conclusion that ‘dignity’ has the potential to be such a catch-all, that everyone and anyone could invoke it to support any position, meaning (as Alex Ruck Keene notes) the concept ‘obscures as much as it illuminates’.
Claire Martin is Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the Core Group of the Open Justice Court of Protection Project and has published many blog posts about hearings she’s observed (e.g. here and here). She tweets @DocCMartin
 With thanks to Professor Louise Amoore (@AmooreLouise), Professor of Political Geography, Department of Geography, Durham University, for comments on an earlier version of this blog post.