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13 Mar 2008 : Column 120WH—continued
The Human Rights Act provides a legal underpinning for dignity, respect, equality and fairness in health care and elsewhere. Respecting human rights is not a question of take-it-or-leave-it best practice; it is a legal duty on public bodies. Public bodies have a positive duty to take active steps to protect and respect the human rights of the people with whom they deal. In our view, an understanding of that legal obligation in the public sector is very limited. As a result, there is infrequent compliance. We call for the positive duty that is implicit in the Human Rights Act to be spelled out explicitly in primary legislation. That could kick-start the institutional changes that are needed in public authorities to put the human rights of their users at the centre of their work. The Government’s response to that recommendation
missed the point entirely. It merely referred to the terms of the Human Rights Act and the role of the Equality and Human Rights Commission in encouraging public bodies to comply. Our argument is that the existence of that positive duty is not contained in the Act, so understanding of it and compliance are poor. Will my hon. Friend the Minister explain to the House why the positive duty should not be spelled out explicitly in primary legislation? If not, how does he intend to ensure that the NHS bodies act on that duty?
Mr. Stephen O'Brien (Eddisbury) (Con): Does the hon. Gentleman recognise that the Government had a chance to do just that recently when we looked at the matter in detail in the Health and Social Care Bill?
Mr. Dismore: The hon. Gentleman is right, and I proposed amendments to that effect, which I might mention in a few moments.
The health and social care inspectorate—currently the Healthcare Commission— and the Commission for Social Care Inspection are important in ensuring that health care providers respect and promote human rights. We were critical of the Healthcare Commission for regarding the Human Rights Act as just one of a large number of regulations to which it is subject. The Human Rights Act is fundamental to the work of the commission, and should be used explicitly in its regulatory work. The Government response pointed to a recent report by the commission, “Caring for dignity”, which included the commitment to ensure that dignity and human rights are the underlying principles that inform the work undertaken by the commission.
Things have moved on since our report, and the Bill to merge the inspectorates into the new Care Quality Commission has passed through the House and is in the other place. We published two reports on the Health and Social Care Bill. The first set out amendments to the Bill to take account of some of the recommendations in our report, which we debated on Report a few weeks ago. Our main concern is to ensure that the Care Quality Commission adopts a human-rights based approach to its work and that human rights are reflected in the care standards that will be issued by the Department. The Minister was not persuaded that human rights should be one of the factors of which the CQC should take account in its work, and he said that the commission will be subject to the Human Rights Act.
In our view, the Government are again missing the point. There is ample evidence to show that health care bodies are not taking their commitments under the Human Rights Act sufficiently seriously. It has taken several years to persuade the Healthcare Commission that human rights should be a central element of its work, rather than simply being one of the many legal requirements that it must meet. The CQC will be in the same position unless the Government act now to accept our recommendation to insert a reference to human rights into the factors that the CQC must take into account.
We are not convinced that the National Institute for Health and Clinical Excellence is doing enough to take human rights into account in its decision making. That is particularly important in relation to difficult decisions
about the availability of treatments for older people. We call for NICE to demonstrate in all its work that it takes into account convention rights as required by the Human Rights Act.
Mr. Stephen O'Brien: The hon. Gentleman may be aware that we have made a recommendation, and we hope the Government will see fit to copy it. NICE’s remit should be widened through legislation to include cost and clinical effectiveness and to bear in mind societal effects. That encompasses a reference to human rights, particularly in relation to carers and the cared for, and that is the provenance of our policy making.
Mr. Dismore: The hon. Gentleman probably goes a little further than I would regarding the wider impact on society, and he may have gone beyond the human rights principles that we are advocating. If human rights principles were part of NICE’s basic approach, that would in itself be a significant advance and might address many of the matters about which he is concerned.
I shall now consider the position of NHS staff, who are on the front line in protecting and promoting the human rights of older people in health care. They are the people with whom older patients and residents interact every day and on whom they rely. We are not talking simply about doctors and nurses: the attitudes, actions and omissions of reception staff or those involved with patient transport have a major impact on older people. They, too, should know what is needed to respect, protect and promote the human rights of the people with whom they deal. Given the many competing demands on health care staff, if cultural change is to be achieved, it is vital that all staff understand what human rights principles mean and how they should be applied. By respecting human rights, staff will also be able to recognise and support the positive benefit they bring to their own working lives, and the lives of patients and residents.
Since the Human Rights Act came into force in 2000, human rights training should have been provided throughout hospitals, care homes and other public sector organisations. In 2003, the Audit Commission made a similar recommendation, but the training has not materialised. When training is provided, it is on a one-off basis and is somewhat unfocused. We recommend that all staff working in health care, both clinical and non-clinical, receive targeted and regular training in human rights principles and duties, and how they apply to their work. The training should be integrated into general training, so it should not be costly.
We also ask the Government, the regulators, and the Equality and Human Rights Commission to monitor the extent to which training is provided. The Government responded positively to our concerns and mentioned a number of initiatives that deal with training and guidance on human rights. Perhaps the Minister will tell us what is being planned in more detail and the time scale for those initiatives.
Mr. Stephen O'Brien:
We should focus not just on abstract training, which can often be quite legalistic, but on the practicalities. Health and safety legislation has resulted in many nurses and carers in care homes being discouraged from undertaking the lifting that was commonplace in the past. Training has always been required to enable somebody to lift well, without causing bruising to vulnerable people who are susceptible to
bruising. Training at that level is also a human right in relation to professional skills, and we should, for example, train people to lift, rather than simply inform them about the legal issues.
Mr. Dismore: The hon. Gentleman has made an interesting point. There was a Human Rights Act case that trumped the ban on lifting and stated that patients should be lifted when appropriate. Obviously, with appropriate training, it is possible to lift people safely. I know from my old job as a personal injury lawyer that nurses can often be injured when lifting patients improperly, because they have not had the training or been given the additional staff required to lift patients safely. That is linked to the points I made earlier about how the position of staff should be strengthened when they argue against doing things that they consider to be in breach of the rights of their patients.
We recommend that qualifications, accreditation and relicensing for health professionals should include a basic understanding of human rights principles, such as dignity, fairness, respect and equality. I tabled amendments to the Health and Social Care Bill to address a number of those issues and although the Minister again argued that the bodies responsible for those matters are subject to the Human Rights Act, our view is that that is not enough to ensure that human rights are taken seriously. Staff who come across incidences of neglect or carelessness should be required to report them without fear of reprisals. Doctors and nurses are under a professional duty to report poor treatment, but other staff, particularly those in care homes, are not under such a duty. On our study visit to Denmark and Sweden, we were informed of Lex Maria and Lex Sarah—laws which require all employees in residential care or hospitals to report suspected abuse. We recommend that similar provisions should be introduced in this country by using the new care standards to be introduced under the Health and Social Care Bill. Will the Minister confirm whether or not the new care standards will extend the duty to report poor treatment to all NHS staff and care home workers?
It is key to ensure that older people are empowered. They are often unaware that they have human rights or that such rights are legally enforceable. At Barnet hospital, new patients are given a leaflet about what to expect from their stay, how to complain, and the discharge procedures, but not what their rights are. We call on the Department of Health, the inspectorates, and service providers to make information available in an accessible form to service users about their rights. The Government have agreed with that recommendation, so perhaps the Minister will tell us what is being done to implement it. The Government have referred to two publications—“Human Rights in Healthcare” and “Promoting Dignity within the Law”—which are apparently available to service users. Will the Minister tell hon. Members how many copies have been distributed to the public, and how the impact of those documents has been measured? Is he satisfied that his Department is doing enough to disseminate information about human rights to patients and carers?
Older people often benefit from independent advocacy to ensure that their voices are heard. We welcome the Minister’s support for independent advocates, but we are concerned about whether there are sufficient advocates to meet the needs of older people. We are also concerned
about whether advocates are adequately trained in human rights principles. Effective complaints mechanisms are essential, but they function only if people know how to complain, are not afraid to do so, and are not victimised when they do. Ultimately, a system in which complaints can be made to a third party is needed. We are concerned about the proposal in the Health and Social Care Bill that states that the Care Quality Commission will not be able to investigate individual complaints in the way that the Healthcare Commission can. More emphasis will be placed on resolving complaints at a local level. Will the Minister explain how local arrangements will be sufficiently independent of the organisations that are the subject of the complaint to enable the process to be credible in the eyes of the complainants, especially those who fear victimisation from those about whom they are complaining?
Mr. Stephen O'Brien: I deal with the issue of complaints in my remarks. We had an extensive discussion on that matter in the Committee that considered the Health and Social Care Bill, despite the difficulty in getting the amendments in order and selected. Does the hon. Gentleman recognise that since the axing of community health councils and their immediate successors—local involvement networks are about to replace forums—there has been concern about the lack of independence for patient advocacy bodies, particularly in relation to NHS care? Those who are vulnerable and need help require an assurance about independence so they can trust the process, rather than thinking it will be an in-house fix. Such independence is still absent from the Government’s plans.
Mr. Dismore: I understand what the hon. Gentleman is saying. There are two types of complaints: those that can be resolved locally and quickly without too many problems and others that are more serious and require further detailed investigation. Handling the latter category requires a degree of independence, which is why we have made our recommendations. I tabled amendments on Report, but unfortunately Mr. Speaker did not select them, otherwise we would have been able to debate the matter fully then. One of the advantages of a Joint Committee is that we have representatives from both Houses. I shall be surprised if my colleagues from the other place do not table amendments on the matter when the Bill starts its passage through the Lords.
One of our concerns related to the risk of eviction. We were alarmed by how little protection care home residents have against eviction, compared with tenants in rented accommodation. That is particularly relevant in the context of complaints: care home residents and their families and carers are less likely to complain about the care that is provided if they are worried that the response will be eviction. We heard of a care home resident who used the emergency buzzer at night. The care assistant took half an hour to come, by which time the resident had wet the bed. The resident was left in the wet bed, the buzzer was thrown across the room and, after making a complaint, they were given 28 days’ notice to leave. In another case, a low-level complaint was made to the care assistant about the resident’s bed not being made. Twenty-eight days’ notice was given to look elsewhere. The YL case arose out of similar circumstances, with the proposed eviction of Mrs. YL from her home in Birmingham.
In Denmark and Sweden, residents have the same security as other tenants. As their needs increase, the level of care steps up from sheltered accommodation to highly dependent, all in the same home. Will the Minister consider making it harder for care homes to evict residents? I am sure that hon. Members are familiar with the YL case, given the intense interest throughout the country in its outcome. In essence, users of services provided by the private and voluntary sectors but commissioned by public bodies are excluded from the protection of the Human Rights Act, as a consequence of the House of Lords judgment. That raises issues that go far beyond our debate today, but the consequences have been brought into sharp focus by the impact on care home residents: 77.9 per cent. of care homes are private and 13 per cent. are in the voluntary sector, which means that residents in 91 per cent. of homes have no direct protection under the Human Rights Act.
This year, for the second time, I have introduced a private Member’s Bill to attempt to resolve the general issues; and for care home residents in the interim, I moved on Report a new clause to the Health and Social Care Bill to restore the law to what everyone believed to be the case before YL and the earlier authority established by the Leonard Cheshire case. I am pleased that the Minister responded positively, with an undertaking to report to the other place with the Government’s own proposals. I hoped that that would result in a Government amendment, so I withdrew my amendment. Will the Minister bring us up to date on Government discussions and tell us what amendments he anticipates will be tabled in the other place?
I come now to the question of leadership. Until recently, the Department of Health manifestly failed to ensure that human rights were at the heart of health care policy and practice. It was left to voluntary organisations to provide leadership and fill that vacuum. We need nothing less than an entire change of culture throughout the health service and care home sector. Recently—perhaps because of our inquiry as well as the work of non-governmental organisations—Ministers and senior officials have come to understand better the importance of human rights in health care, and I very much welcome that change. The references to human rights in the policy documents that we have seen are good. I certainly cannot fault the Minister’s personal understanding of the issue and commitment to progress. However, we are concerned about how that translates into policy making and implementation in practice.
At the end of our inquiry, we remained without confidence that the Human Rights Act was
“an integral part of policy-making”
in the Department. Initiatives such as the British Institute of Human Rights pilots are welcome but piecemeal, and there is no clear strategy on making human rights integral to the work of the Department as a whole. There has to be much clearer guidance, and we need a much stronger cultural steer. The reluctance to use the language of human rights must be overcome. It is not an embarrassment, but a guarantee of good practice.
The Government told us that they were focused on improving their performance, drawing on support from the Equality and Human Rights Commission. Will the Minister tell us whether there will be a departmental
human rights strategy, so that human rights considerations can be at the heart of the Department’s work? How will the Department demonstrate leadership throughout the NHS on human rights? The Department said that it would review its policy-making processes to ensure that they reflected human rights considerations. Has that been done? If so, what was the outcome?
This year, the NHS is celebrating its 60th anniversary. It has been a remarkable success story overall. In our inquiry, we pointed to ways in which it can be more successful still by putting human rights at the heart of its work, which will make the rights and needs of users central to the work of the NHS, helping to ensure that financial or staff pressures, or the sheer weight of the bureaucracy, do not drive policy and practice. As one consultant told us, “Looking after older people well is a lot cheaper than looking after them badly.” That can be done without spending enormous sums of money, but it requires a cultural shift from the top of Richmond house down to the staff on the hospital reception desk or in the call centre. The welcome political commitment recently shown by the Minister and his colleagues must be both intensified and sustained, so we will continue to keep the Department of Health under scrutiny until the human rights of older people in health care receive the respect to which they are entitled.
3.4 pm
Dr. Evan Harris (Oxford, West and Abingdon) (LD): I congratulate the hon. Member for Hendon (Mr. Dismore) on the way in which he summarised the findings of the report and the reaction to the Government response to it. I also thank him for his chairmanship of the inquiry. As a member of the Committee, I can certainly testify to the fact that it was a thorough and serious inquiry, examining what could have been a very wide field. Efforts were made to narrow down the issues that we considered in order to produce a focused report that was able to make specific recommendations in the relevant time scale. Our Committee is a busy one. It scrutinises the human rights compatibility of all Government Bills and some private Members’ Bills, and considers the UK’s compliance with treaty obligations and judgments in our domestic courts and at the European Court of Human Rights in Strasbourg on human rights cases. It also conducts thematic inquiries; the one that we are discussing was a significant piece of work last year.
I endorse everything that the hon. Gentleman said. I just want to make a number of additional comments. First, I apologise to the Minister, to you, Lady Winterton, and to other hon. Members present because I will not be able to stay to hear the concluding remarks. Therefore, I shall not ask any specific questions of the Minister; I shall just add some commentary to what the hon. Member for Hendon said.
I was struck by a process issue, which I shall place on the record in the hope that clarification can be given. Our report contained 54 conclusions and recommendations, but the Government response considered 36. I found that confusing. It turned out that those 36 included the expansion of one of our recommendations to two in a number of cases, so the Government probably responded specifically to only about 30 of the 54 conclusions and recommendations.
What the Government have done—I am not criticising this; I am just commenting because it is not something that I have noticed before—is respond only
to those conclusions and recommendations that were recommendations. Perhaps that is appropriate, but I think that when we put certain parts of our report in bold type and considered them conclusions, we were expecting the Government to react to the assertions that we were making, even when they did not start with the words “We recommend”. Perhaps there is an issue of process for those of us on the Committee to consider. Perhaps we should specifically say at the end of every assertion, “We recommend that the Government respond to this assertion,” because if that does not happen, it is hard to engage in the give-and-take of a report and response as fully as we would want.
In fairness, I accept that the Government did engage on the points to which they responded. I suspect that the Government are not able as effectively to clarify which of our assertions they disagree with. A couple of those are exemplified in the recommendations that we made on delayed discharges, which was the subject of one of the first sections of our report. The hon. Member for Hendon spent some time explaining why we were concerned. Our conclusions and recommendations included a number of points that were not formal recommendations. For example, we said:
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