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“connected with the provision of health...care.”
Therefore, I am assuming that that will be a regulated activity that has to be registered with the commission. The Bill does not make explicit—perhaps the Minister could be helpful by clarifying this so that it will become apparent through subsequent readings of Hansard—whether that will include all the associated facilities for providing such a service, such as staff accommodation and depots.
Clauses 11 and 12 deal with registration regulations, and clause 16, deals with the regulation of regulated activities, and although there is a need to register, I can see nothing elsewhere in those clauses that would require the commission to consult other agencies, such as the local environmental health authority, as to whether the application for registration should be granted or refused. Perhaps I should say at this point that I speak as a vice-president of the Chartered Institute of Environmental Health. I would like the Minister to set out the role that he anticipates for local authorities with regard to information they might have on whether private providers of some regulated services are suitable. For example, I would like to know what account the commission can take of issues such as food safety, hygiene or health and safety matters. If the Minister considered clause 4(3)(b) in detail and perhaps providing for associated facilities after transport, that might be a way in which to tackle some of my concerns and those of others about the matter.
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If the Minister could clarify the issue, it would give me some sense of security that depots and staff rooms associated with private ambulance services would be included in the regulated activity and taken into account in the registration process so that we could deal with unhygienic facilities, if necessary. Much legislation relates to health and safety at work and there is a procedure for considering the health and safety at work aspects of the measure. However, when we deal with the most vulnerable people in our constituencies, it is essential that we have all the necessary support. I implore the Minister to give some comfort about section 6 of the Human Rights Act and facilities associated with the private transport provision of non-emergency ambulance services.
Kelvin Hopkins: I am pleased to support the amendments, which my hon. Friend the Member for Hendon (Mr. Dismore) proposed so competently and ably. Indeed, they reflect amendments that I tabled in Committee, although I tried to go slightly further than my hon. Friend in that they would have covered all residents of private care homes.
Of course, I understand my hon. Friend the Minister’s concern about the difficulty of covering self-funders because the Human Rights Act specifically covers relations between the individual and the state, and self-funders are, by definition, private residents paying a private concern to care for them—the state is not directly involved. However, I believe that we should find a way to ensure that all residents of care homes are covered by the Human Rights Act. At the moment, if one is in a
care home that is privatised, or moved from a public to a private care home, one is removed from coverage of the Human Rights Act, and that is unacceptable. Even if the Government tabled amendments along the lines suggested by my hon. Friend the Member for Hendon, the self-funders would still not be covered. I have a possible solution, which I will urge on the Minister later, but I will not spring that surprise on him just yet.
The problems arise from two fundamental factors, about which I was not happy when they occurred. The first is the privatisation of care homes. If they had stayed in the public sector and all care homes were in the public sector, there would not be a problem. The second is means-testing funding. If all funding were public, without means-testing, there would not be a problem. I urge the Government to reconsider the recommendations of the royal commission on long term care for the elderly that all care home residents should be publicly funded out of taxation—progressive taxation at that. There would be no problem with coverage by the Human Rights Act if the Government ensured that all residents of care homes were publicly funded. When the royal commission produced its recommendations, it estimated the cost to the Exchequer at £1 billion a year. That is not much money in the great scheme of things—it is the equivalent of one third of a penny on the standard rate. I have spoken to many people, in meetings and privately, and asked whether anyone would object to the equivalent of a third of a penny extra taxation to pay for long-term care for everyone, including us. Many of us, because we will live longer and are much healthier than we were, will probably finish up in care towards the end of our lives. Indeed, some people might even choose to enter long-term residential care, which should also be an option, rather than having to enter it because of ill health or infirmity. If we could all be assured that, whatever happened, we would be guaranteed long-term care at the end of our lives that was properly funded by the state, we would all be greatly relieved. Indeed, I have heard no one object to that proposition in all my conversations.
The other issue is the privatisation of care homes. Personally, I was deeply opposed to the privatisation of care homes and opposed the effective privatisation of care in my constituency, encountering some difficulties with the local authority at the time. Nevertheless, the changes went ahead, under pressure from the Government and through the use of legislative and financial means to press the authority to move care into the private sector. In effect, that is how things happened—there are still some public care homes, but as the hon. Member for Romsey (Sandra Gidley), speaking for the Liberal Democrats, pointed out, 90 per cent. of care is now in the voluntary and private sectors. That is a matter of concern.
I believe profoundly in the public service ethos—the idea that when people work in care, they do so not for profit, but to care for their fellow human beings, out of a commitment to their interests. If care is in the public sector, that is indeed what happens. One of the care homes in my constituency that closed down was in the middle of a large community from which people went into residential care. The home was staffed by people from that community who were long-term workers there and was democratically accountable to the local authority. That was the ideal situation, yet the home was closed and the care moved into the private sector.
I know that we are not talking about bringing all care back into the public sector at this stage, although there is a mood of nationalisation abroad today that I welcome very much. In the longer term, I hope that the Government will look to public ownership once again and make long-term care part of the overall health provision envisaged by everyone from Nye Bevan onwards, based on the principle of universality so well expressed by Beveridge, Bevan and many other socialists of that time, but perhaps put most brilliantly by Professor Richard Titmuss, who influenced me in my youth in setting out the case for universal provision.
I have made my point. I hope that the Government will consider the possibility of providing free long-term care, which would overcome the problem, and, in the longer term, bringing all care back into the public health service.
Mr. Stephen O'Brien (Eddisbury) (Con): It is always a pleasure to follow the hon. Member for Luton, North (Kelvin Hopkins). Nobody can doubt the sincerity and consistency with which he has presented his arguments both on the Bill and over many years, encompassing human rights and his views on the nature of ownership and delivery. I salute him for the consistency of his arguments.
I do not intend to take up too much of the House’s time. I pay tribute to the work of the hon. Member for Hendon (Mr. Dismore) and the Joint Committee on Human Rights, both in championing the rights of those in care generally and in keeping the Government’s feet to the fire on the issue. The Public Bill Committee drew on the JCHR’s work, particularly its 18th report of the previous Session entitled “The Human Rights of Older People in Healthcare”, HC 378. It is important to note that although the Committee was most exercised by the eviction of individuals from care homes, the Government are presiding over a wide range of human rights failings in our health and social care sectors.
The Joint Committee report noted that
“many witnesses, including the inspectorates, providers and organisations supporting older people, expressed concern about continuing poor treatment of older people in healthcare.”
The report charted failings under articles 2, 3, 8 and 14 of the European convention on human rights in respect of, among other things: malnutrition and dehydration, which we shall expand on in the next group of amendments; inadequate assessment of a person’s needs; abuse, neglect and bullying; lack of privacy in mixed-sex wards, which, as it happens, relates to another of the Government’s broken commitments; a lack of dignity, especially for personal care needs; too hasty discharges from hospital; fear of making complaints, an issue that unfortunately has not been selected for debate on Report, despite our best attempts; and age, disability and racial discrimination.
On the basis that it is appropriate to the debate, I should like the House to note the importance of the fear of making complaints in relation to the legislation that we are debating today. This is a cross-party concern. It was raised in Committee by us and by the spokespersons for the Liberal Democrats, as well as by the hon. Member for Luton, North, who said:
“A number of my hon. Friends, not necessarily members of the Committee, are concerned about changes in patient representation and procedures for patients making complaints in recent years.” ——[Official Report, Health and Social Care Public Bill Committee, 17 January 2008; c. 346.]
The hon. Member for Tamworth (Mr. Jenkins), who I see in his place today, also sought to hold the Government to account for their shortcomings in this area. Furthermore, the hon. Members for Oxford, West and Abingdon (Dr. Harris) and for Hendon are seeking clarification on this issue.
The remaining unanswered questions on complaints centre on three issues. The first involves resourcing the ombudsman, who is facing an elevenfold increase in work load, yet none of the costs of that increase have been reflected in the impact assessments for the Bill. The second involves monitoring trends. With the Healthcare Commission losing its complaints function, how can we be sure that the early warning signals will be picked up by the regulator? I dare say that we all remember the tremendous work of the community health councils, which were able to use the collective wisdom of all that they had been able to achieve through their inspections and access to hospitals through programmes such as Bedwatch. We discussed that at length when the Government announced that they were axing the community health councils but then had to postpone their abolition and give them a stay of execution for a year. Those functions now appear to be at risk again. I hope that the Minister will address that point specifically.
The third issue involves putting in place a complaints system for privately funded social care. That has just been referred to by the hon. Member for Luton, North. The Under-Secretary of State for Health, the hon. Member for Bury, South (Mr. Lewis), has said in Westminster Hall that
“it is unacceptable that self-funders should not have the protection that other residents have”.—[ Official Report, Westminster Hall, 11 December 2007; Vol. 469, c. 52WH.]
He also told the “File on Four” programme in September that he would be achieving his aim through this Bill. That is all on record. That is a promise, however, that the Government now appear to have reneged on. I hope that the Minister will take note that his colleague has put that intention on the record, and I hope that the Minister has now been persuaded that this is the moment to look at this matter.
In its submission to the Committee, the Commission for Social Care Inspection said that the new regulator should take a “strong rights based approach”. In support of that, the Joint Committee said that the Care Quality Commission should adopt a
“human rights framework with the intention that the framework informs all of the inspectorate’s work and so makes it more effective in fulfilling its statutory duties.”
The Mental Health Act Commission, which was rightly commended by the Joint Committee for its human rights approach, was particularly concerned in its oral evidence to the Committee that the human rights focus would be lost in the merger. The Government have as yet failed to guarantee that that will not happen. The Commission has called for “an overarching principle” of equality and human rights, focusing at all times on the civil, legal and human rights of patients.
In Committee, the Minister confirmed that the frequency of visits—a vital point—would be
“a matter entirely for the new commission”. ——[Official Report, Health and Social Care Public Bill Committee, 17 January 2008; c. 323.]
The MHAC, however, wants visits to continue with their current six-month regularity. The choice will be truly free only if the commission is properly resourced to do what it deems important, but the Minister has not as yet given such a guarantee. I hope that we shall be thrilled today by his contribution in that regard.
It is disappointing that we have to have these discussions on amendments to a Bill on Report. We looked at these matters extensively in Committee, as the hon. Member for Luton, North has mentioned. He was supported in Committee by the hon. Member for Tamworth. They both raised a number of these issues, but it was felt by the Minister that campaigners on this issue would be pleased to hear his commitment that the Government were
“committed to ensuring that independent sector care homes are covered by the Human Rights Act.” ——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 135.]
He reiterated the Government’s line that that would be achieved in the Bill of Rights, but if he has committed to that, we question why he is not prepared to pass the amendments now.
Clearly, a cart and horse situation has developed in the Government’s mind—that the Bill of Rights is necessary for proper scrutiny in order to arrive at what would be relevant to the application of such human rights to private sector care homes within a Bill of Rights framework. It seems to us that the right place for a thorough going over of that was in Committee, but that was rejected during the course of our deliberations. It is in Committee, Madam Deputy Speaker, that it is appropriate to go through really intense and detailed scrutiny of these provisions, which provide complex material to interweave and interleave into existing legislation. Having an appropriate debate on these amendments now depended on having a proper Committee stage as a matter of principle. In the absence of any such debate and of the bringing forward of the Bill of Rights in advance, our present debate becomes difficult and it is not easy to form a clear opinion of how the provisions will work.
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I notice that a letter in The Guardian today was signed by 33 different national voluntary sector providers of social care services to disabled people and many others, including all in receipt of social care. They state that the Health and Social Care Bill really must put users at the heart of regulation and argue for the rights-based approach, which was very much the evidence revealed by Dame Denise Platt, the head of the Commission for Social Care Inspection, during Committee hearings.
If the new clauses and amendments are pressed to a Division, it would be difficult for us to signal our support, but at the same time we do not intend to vote against them either. We want to register our main point that the Bill of Rights that the Government have prayed in aid absolutely needs to be brought forward fast; otherwise, the Government’s commitments will be revealed as hollow. Clearly, there is a major demand to involve human rights principles, not least those
articulated by the Joint Committee, but in the absence of discussion of the Bill of Rights, we are in grave danger of trying to legislate for the cart before the horse has been debated. On that basis, our position is clear.
The Minister of State, Department of Health (Mr. Ben Bradshaw): As has already been said, this group of amendments deals with a number of matters raised in the legislative scrutiny report of the Joint Committee on Human Rights, which was published earlier this month. It has provided a very helpful human rights perspective to the Bill and I would like to take this opportunity to pay tribute to the Committee’s diligent and important work under the chairmanship of my hon. Friend the Member for Hendon (Mr. Dismore). Indeed, I pay tribute to all hon. Members who contributed on the issue of human rights as the Bill went through Committee.
I hope to offer some words of comfort to my hon. Friend and to them, but I also need to say from the outset that we do not believe that most of the amendments in the group are necessary. I shall come on to explain why in a few moments. We agree with the principle behind the Joint Committee’s proposed amendments, but we do not see the need to inscribe everything in primary legislation. I understand that proposing a large number of amendments in this way represents a new approach for the Joint Committee, but in this instance I am not sure that it is the most effective way to proceed. Where the Government are giving undertakings or are already pursuing a particular policy, I hope that the Committee will accept those undertakings rather than pursue the course of specifying every last detail directly in the legislation.
New clause 1 is designed to apply the Human Rights Act 1998 to all public and all independent providers of health and adult social care registered with the new Care Quality Commission if the care is publicly funded either wholly or in part and is pursuant to statutory powers. We heard a great deal in the evidence presented to the Committee and in the Committee’s own deliberations about the case for bringing private and voluntary sector health and social care providers within the scope of the Human Rights Act 1998. I said, and I repeat, that I am sympathetic to the intention of dealing with publicly funded care, be it health or adult social care, that is behind the new clause. I thank my hon. Friend and his Committee for setting out the issues so clearly. As I hope I made clear in Committee in response to a number of proposed amendments, including those tabled by my hon. Friend the Member for Luton, North (Kelvin Hopkins), the Government are firmly committed to amending the Human Rights Act to ensure that all publicly arranged care provided by the independent sector is covered by it. We have agreed with the Ministry of Justice that it would be appropriate to use the Health and Social Care Bill to strengthen regulatory powers to ensure that the Care Quality Commission can enforce regulatory requirements in line with the spirit of the European convention on human rights.
However, as I indicated, we have difficulties with new clause 1 as drafted. For example, it links the coverage of the Human Rights Act to “regulated activity”, as defined in clause 4, which would be registered with the Care Quality Commission. That merely provides for
regulations to determine what is a regulated activity. Therefore, the scope of the Human Rights Act could be altered by secondary legislation. I am sure that that is not the intention of my hon. Friend the Member for Hendon. I suspect that the relevant Committee in another place would consider it an inappropriate delegation of powers for an Act as important as the Human Rights Act. Moreover, we are also not sure what would or would not be covered by the test within the new clause of care provided
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