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13 Mar 2008 : Column 133WH—continued

Greg Mulholland: Thank you, Lady Winterton. I heard what the Minister said, but it is my understanding—I might be wrong—that we are talking about people who are self-funding, who might well be in the same environment
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as people who are publicly funded. The simple principle remains: I and many organisations believe that every individual, regardless of whether the home is public, private or voluntary, and regardless of whether they are publicly funded, part-publicly funded or privately funded, should be covered by the Human Rights Act. In the end, that is what I and older people’s organisations want.

I therefore welcome the helpful U-turn by the Government, who, following discussions with the Minister of State, are planning to bring forward an amendment on Second Reading in another place. First, will the Minister say whether the amendment will cover all four nations in the United Kingdom? We are aiming for universality, so any other measure will not do. Secondly, to return to our earlier discussion, will the amendment cover all care provision, including both self-funders and those who are publicly funded? Otherwise, we will continue to have a split. Perhaps the Minister will clarify those things when he makes his winding-up speech.

Mr. Stephen O'Brien: I have been listening very carefully. I would be very surprised if such an amendment came forward because, if the Government held talks, they did not involve any Member of the official Opposition. As the other place prepares to consider the Bill, we have not been informed that the Government have any such amendment in mind. As far as we know, there is purely the prospect of a discussion on a Bill of Rights that might incorporate such ideas.

Greg Mulholland: All I can say to the hon. Gentleman is that MPs who were invited to the discussion with other organisations added their name to amendments in Committee. That might be something that he wants to take up, but it shows that we need clarity. I believe that the Government will table an amendment that represents a U-turn from the position taken by the Minister of State in Committee. The concern of older people’s organisations and human rights organisations is that it should not be a half-way house but should cover everybody in care homes.

We heard today—I am sure that we all agree—that the human rights of older people are not sufficiently enshrined in law, and that we do not have the kind of duties at the heart of the health and social care that are needed. Until the Government are prepared to take action, closing that loophole and introducing the necessary duties, the human rights of older people will not be central to our health and social care systems. I am sure we would all agree that we need to move towards that position.

3.40 pm

Mr. Stephen O'Brien (Eddisbury) (Con): It is a pleasure, Lady Winterton, to serve under your chairmanship for this timely and important debate.

I congratulate the hon. Member for Hendon (Mr. Dismore) on introducing the debate in such a comprehensive and reasoned manner. I also congratulate him on his chairing of the Joint Committee. I hope that he has the chance to secure further discussion of the subject in the main Chamber. I am sure that it merits such a debate. At the very least, it is highly likely that
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the report will be referred to in connection with many other matters that are to go through both Houses, and in other contexts.

I pay tribute to all nurses, carers and others in the care sector—and, indeed the care home owners and businesses. They provide excellent care, day in and day out, to the most vulnerable people in our society. We should not allow aberrations, however horrible, to cloud our judgment of those who discharge their duty with skill, compassion and professionalism. They work towards quality of life, dignity, respect and well-being with the unremitting best care and attention that we know exist.

I hope that the Minister will enlighten us as to why no mention was made of social care in yesterday’s Budget, and why no mention was made of the NHS—our No. 1 priority and, until yesterday, what the Prime Minister said was also his priority.

The Joint Committee identified the areas on which this debate should focus. They were that human rights should be integral to policy making by the Department of Health as well as to the planning and implementation of services in hospitals and care homes; that human rights should underpin the work of the proposed health and social care inspectorate; that front-line staff in health care should receive appropriate education and training in human rights; and that there should be no discrimination on the ground of age in the provision of health care to older people. The Committee also highlighted the fact that the debate would be an opportunity to scrutinise the Government’s response to the judgment of the House of Lords in the YL case, in which it was found that private sector care homes were not public authorities for the purposes of the Human Rights Act 1998.

The Joint Committee’s report charted failings under articles 2, 3 and 8 of the European convention on human rights because of malnutrition and dehydration, and the inadequate assessment of a person’s needs; articles 3 and 8, because of abuse, rough treatment, neglect, carelessness and poor hygiene, and bullying, patronising, and infantilising attitudes towards older people; and article 8 because of the lack of privacy in mixed sex wards—another broken commitment by the Labour party—and a lack of dignity, especially for personal care needs.

The report also noted failings under article 8 because of insufficient attention being paid to confidentiality, inappropriate medication and the use of physical restraint, too hasty discharge from hospital, fear among older people of making complaints, and eviction from care homes; article 14 because of the discriminatory treatment of patients and care home residents on grounds of age, disability and race; and articles 8 and 14 because of communication difficulties, particularly for people with dementia or people who cannot speak English. Those are the issues that underpin our debate.

The Department’s responses on the question of human rights being integral to policy making and the planning and implementation of services were disappointing. In its response to recommendation 8, it failed to commit itself to a statutory constitution for the NHS. The wider concern is not just that human rights are left out. In December 2006, a consultation on the core principles of the NHS—we have committed ourselves to enshrining those principles in legislation—was undertaken by the Secretary of State for Culture, Media and Sport when
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he was Minister of State at the Department of Health. In it, the Government omitted the principle that

Are the Government still planning to get rid of that central pillar of our NHS?

I would be grateful if the Minister provided me with a copy of “Better Policy-Making”, a document that the Government pray in aid in their response. However, the response does not make clear whether the document highlights human rights in any way. I genuinely trust that the Government will not seek to divert the Joint Committee with such an action.

The Joint Committee also proposed that human rights should underpin the work of the proposed health and social care inspectorate. Like others, I had the privilege of serving on the Committee that considered the Health and Social Care Bill. I am glad that we have the opportunity today to hear from the Minister about the Care Quality Commission. One of our concerns is that, in the merger, social care will be squeezed out as a priority.

It was unfortunate that the Minister, who is responsible for social care, was not chosen to take that Bill through Committee. A number of Committee members would have liked to see him take charge of that Bill; we believed that we might have made more progress if he had had responsibility for the Bill rather than his colleague, the Minister of State, Department of Health, the hon. Member for Exeter (Mr. Bradshaw). Indeed, I know that that concern was shared by some of the Minister’s colleagues.

The Commission for Social Care Inspection has said that it

and there is a desire to “properly reflect” that “in the legislation”. The official Opposition sought a number of changes to the framing legislation for the Care Quality Commission. One of the most important was to create a reference board consisting of commissioners, and a management board consisting of executives, at the head of the commission. That would have resulted in stronger governance, and the promulgation of human rights.

The Minister of State rejected that proposal on the grounds that he did not want to tie the hands of the new commission in its structure—a somewhat spurious argument, as the legislation as framed prevents it from having that structure should it so desire. One has to look at it the other way around. He may genuinely have wanted the freedom of that option, but the legislation was deliberately set out to ensure that that option was closed.

The Bill Committee also sought to establish a human rights committee within the CQC. The Minister of State refused that request on the ground that the advisory committee set out in schedule 1 to the Bill would fulfil that requirement. However, he also said that the advisory committee would be used for patient and public involvement. I wonder whether the Minister will take this opportunity to clarify those mixed messages.

It was also disingenuous of the Department, in its response to recommendations 20, 21 and 22, to say that it would take no action on human rights because it

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On health care-associated infections—the new phrase for what we used to know as health care-acquired infections—the Government have mandated action from the CQC in the Bill. Why are HCAIs more important than human rights? Why, for that matter, are such infections more important than malnutrition, which affects more people and also breaches article 2, 3 and 8 of the European convention on human rights? The Government repeatedly refused to include that in the Bill, and I hope that the Minister will shed some light on the illogical nature of the Government's contention. Does he believe that HCAIs are more important than human rights, and can he say why the Government were not prepared to include malnutrition in the Bill? As we argued in Committee, many people say that it is closer to a human rights issue.

It was encouraging to see the Joint Committee’s focus on training in human rights for staff, a matter that the hon. Member for Hendon rightly focused upon. Training was discussed at length by the Bill Committee, and I hope that those discussions will be noted by the CQC. The other side of the coin is that staff should have the time to put into practice the things that they have learned.

In fact, the majority of those in the caring professions would deliver care compatible with human rights if only they did not have to contend with so many bureaucratic procedures and Whitehall top-down targets breathing down their necks. That argument is more generally pursued on the Floor of the House, so I shall not take time on the matter now, but I hope that hon. Members recognise that there is a consequence to managing the health service with such top-down targets.

I hope that the Minister will take on board our proposals for getting rid of distorting targets in our NHS. I would be interested to know when he intends to raise the recommendations with the strategic health authorities and training bodies, as he commits to doing in the Government response, and what measurable outcomes he is expecting.

Rightly, the Joint Committee also called for no discrimination on the ground of age. One specific issue that was picked up on in the Government response, which was raised by the hon. Member for Oxford, West and Abingdon (Dr. Harris), was discharge planning. The Government response to recommendations 1 and 2 showed some prevarication. We have an opportunity today to see if that prevarication can be addressed, as there were no measures in the Government response to strengthen discharge planning, which would ensure that older people’s care was not compromised.

In their policy review for the official Opposition, my right hon. Friend the Member for Charnwood (Mr. Dorrell), who is a former Secretary of State for Health, and Baroness Perry of Southwark examined the experience of Sweden and Denmark, where hospitals can charge social services for extra bed days. In Sweden, notification of patients is made immediately on admission, social workers visit wards daily and discharges are planned in four stages during the patient’s stay.

Lady Winterton, that is a system that we could usefully use in our shared county of Cheshire—we are neighbouring MPs—in which there have been plans to close nursing and care homes; plans that have left some very vulnerable
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people with some dramatic and at times life-threatening situations to contend with suddenly. Therefore, I hope that the Minister will be able to give some clarity and indeed commitment to taking action on the issue of discharge planning today.

The most disturbing issue regarding the empowerment of older people is the changes to, and failings of, the complaints framework. The CQC, unlike the Healthcare Commission which it subsumes, will no longer be a second-tier complaints handling body. Instead the Government intend to strengthen local complaints handling functions and pass unresolved cases directly to the parliamentary ombudsman, which initially will lead to an elevenfold increase in her work load. She is seeking extra funding from the Treasury to support her work and we can only hope that she is more successful than almost every other part of Government.

The Government have not yet told the House how much that change will cost the ombudsman. Given that the Opposition have been asking repeatedly for that information, I must say that that is something of a disgrace. How can hon. Members make the correct judgment if the Government withhold such facts from us?

Regarding the failings of the complaints system itself, the Government acknowledge those failings in their response to the Joint Committee, saying, in response to recommendation 32:

I think that the Minister sought to make that point himself, to some degree, in his intervention on the hon. Member for Leeds, North-West (Greg Mulholland), who speaks for the Liberal Democrats on the issue.

The Health and Social Care Bill Committee and Report stages showed the failings of the complaints system to be a matter of cross-party concern. The hon. Member for Tamworth (Mr. Jenkins) criticised Government policy in that area. The hon. Member for Luton, North (Kelvin Hopkins) said:

The Liberal Democrats supported those comments, as did the hon. Member for Oxford, West and Abingdon, who has just had to leave his seat, and the hon. Member for Hendon on Report, as he rightly mentioned earlier in this debate.

Therefore, I hope that the Minister will be able to clarify his own comments on the issue. Speaking in a Westminster Hall debate, he said:

More cryptically, in September 2007—I do not have the exact date, but I am told that his comments have been verified—he told the “File on 4” programme—this shows that we listen to him at every opportunity—that he would be solving that problem through the integrated complaints procedure for health and social care in 2009, which is again cited in the Government response. However, the Minister of State, who led on the Health and Social
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Care Bill, and the Department, in its response to this report, did not embrace the idea of a universal complaints system, nor did they suggest that that system would be achieved through the 2009 framework. Is the Minister reneging on that undertaking or, as I fear, is he just as disappointed as all the rest of us are with his own colleagues?

Will the Minister tell us exactly how the CQC will monitor trends in complaints? There was no suggestion in the Health and Social Care Bill that the CQC would do that; indeed, the Government rejected the amendments tabled by Opposition Members that tried to achieve that very effect. With the CQC losing its complaint function, how can we be sure that the early warning signals will be picked up by the regulator?

If I may, I would like to pick up a little on a point that I made earlier. The community health councils were axed. It may be frustrating for any Government but independent trusted bodies should have entitlements to visit hospital or care settings and bring forward generically all their collective wisdom, without necessarily having to individualise it. The councils were able to see trends and put out schemes such as bed watch and deal with all the other issues, which were always a major additional source of information about what was truly going on. There seems to be a lack of ability to collate and collect that information, and to ensure that it is generally made available in reports. That was one of the concerns of the bodies that will be succeeded by the CQC; they are concerned that that information will be lost. I fear that it will be a serious loss, both to the individuals who could be affected and for policy-making purposes for all of us, unless the Minister, who I believe would sincerely like to see those matters improved, is able to take that issue up with his colleagues.

I would like to address the issue of private care homes, which was raised by the hon. Member for Leeds, North-West. Although the human rights issue is naturally all-encompassing, political and public interest has recently been most exercised by the human rights loophole under which private care homes are not bound by the Human Rights Act 1998, and can therefore evict residents without breaching article 8 of the European convention on human rights, whereas their public sector counterparts cannot do so.

It would be nice to see the Government not dragging their feet over that issue. During the debate on the hon. Member for Hendon’s private Member’s Bill to clarify the Human Rights Act, which took place on 15 June 2007, the Solicitor-General, the hon. and learned Member for Redcar (Vera Baird), who was then the Under-Secretary of State for Constitutional Affairs and who is herself a human rights lawyer, talked the Bill out rather than bringing it before the detailed scrutiny and consideration of Committee stage, which is what the Opposition wanted and urged should happen at that time. Indeed, it is still our position that that matter warrants the detailed consideration of a Committee stage because of the difficulties—difficulties that we all acknowledge—of intertwining it into all other forms of law.

Mr. Dismore: The hon. Gentleman has referred to the remarks of the Solicitor-General. In fact, I recall her saying at that time that she hoped that the matter would be resolved by the end of that calendar year.

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