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Mr. O'Brien: The hon. Gentleman advocates his position even better than I can, and I am most grateful that he was able to intervene. Therefore, we all doubly share in the disappointment, because we are already now in March of the following year, and that seems to indicate that there is a serious dragging of feet.

In the Westminster Hall debate on 11 December 2007, to which I referred earlier, the Minister who is present today called the current state of affairs an “anomaly”, saying that

During the Committee stage of the Health and Social Care Bill, the Minister of State said:

Why will the Government not deal with that matter now? If they are truly committed to dealing with it, what is the reason for the delay?

I hope that I have put questions to the Minister in a fair manner, and I am sure that he will take the opportunity to give us specific answers to the issues raised both by myself and the hon. Member for Hendon, whom I again congratulate on securing this debate. I also congratulate him and his colleagues in the Joint Committee on producing this report. I am sure that we will see some movement on the part of the Government, but there will still be too much prevarication and, as I see it, another attempt to find sufficient long grass to kick this issue into. I look forward to the Minister dispelling such a notion, which has obviously formed in my mind, and giving specific answers to the specific questions that I have posed. If, for any reason, he is not able to answer them today, I hope that he will be prepared to let us have some answers in writing.

Let us not forget that at the heart of this debate is the care of some of the most vulnerable people in our society. That is something that all of us, and I include the Government in saying that, take seriously, as we ought to.

3.59 pm

The Parliamentary Under-Secretary of State for Health (Mr. Ivan Lewis): I pay tribute to my hon. Friend the Member for Hendon (Mr. Dismore) for his leadership of the Joint Committee on Human Rights and for his personal advocacy on behalf of some of the most vulnerable groups in our society. I have appeared before his Joint Committee to talk about the way in which the health and social care system treats older people and, recently, about the often unsatisfactory way in which it treats people with learning disabilities. Both of those inquiries have led to a sharper focus on the issues and, ultimately, will lead to significant cultural, regulatory and other changes to the way in which the health and social care system relates to older people and those with learning disabilities. He deserves tremendous personal credit, therefore, for championing unfashionable causes.

The hon. Member for Oxford, West and Abingdon (Dr. Harris) made a very constructive and fair contribution to the debate and raised an interesting point about the difference between recommendations and conclusions.
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Of course, if any elements of the Joint Committee’s report have not been responded to adequately, I am more than happy to have a fresh look at them.

I am delighted to say that the hon. Member for Leeds, North-West (Greg Mulholland) made a fair and balanced contribution, which is a new approach from him to these issues. I welcome that very much. I do not want to contradict him, because his contribution was extremely constructive, but he made one inaccurate comment, and it is important to the debate about the YL judgment that we get this clear: neither publicly funded nor self-funded residents in private homes are currently covered by human rights legislation. His case was that in the future both groups should be covered. He would like us to go further than simply dealing with the anomaly and unintended consequences of the YL judgment. I accept that perfectly legitimate position, but his description of the situation—that one group of residents is covered, but the other is not—was incorrect.

Greg Mulholland: I appreciate the Minister’s constructive comments. I was probably not clear. I was trying to say that we must not move to a situation in which publicly-funded people in private care homes are covered, because that would move us from one loophole to another. That was my point—it was not a description of the current situation—but I accept that I probably did not make that clear.

Mr. Lewis: I accept that clarification and shall come on to that issue later. We have a problem with the definition of “public authority”, which makes this quite a complex problem to resolve. Nevertheless, the hon. Gentleman made a fair point; I just wanted to clarify the current situation.

The hon. Member for Eddisbury (Mr. O’Brien) made a consensual contribution and recognised that both sides of the House feel very passionately and strongly that the rights of older people should be a priority for Government, Parliament and society. Those outside the House might demonstrate wry amusement at the fact that he is a passionate advocate for the Human Rights Act and for further regulation and legislation on this subject, in view of his proud track record as a deregulator and a severe critic of the notion of human rights legislation. I am delighted, therefore, to hear him speak so positively about the importance of such legislation and its capacity to protect older people. It seems that when human rights apply to vulnerable people, there is a common view that we as a society have a duty to look after them properly, but when they apply to other groups in society, about which there is not the same level of enthusiasm and support, people deride the whole notion of human rights. I think that we need some consistency in the debate.

The hon. Gentleman said that the Chancellor failed to mention the NHS during his Budget speech, but he referred on several occasions to the record levels of investment that the Government have made in the NHS. I understand why he did not want to hear that bit of the Chancellor’s statement, so I am happy to repeat it. I am also happy to repeat the fact that by the end of 2008 we will have achieved a historic landmark in the NHS—a maximum wait of 18 weeks from seeing one’s GP to
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hitting the operating theatre. Not only has there been record investment, but a major improvement has been made in people’s experiences of NHS care and treatment.

On 1 April, the most radical transformation programme in the history of social care will begin in every local authority area, with a focus on information, advice and advocacy for all and, of course, personal budgets putting maximum power and control in the hands of those who use social care services and their families. As the hon. Gentleman is fully aware, we are committed to a Green Paper on the long-term fundamental nature of our care and support system. There is no doubt that the investment and reform of the NHS and social care system is one of the Government’s top priorities. More important than priorities, the Government’s track record over the past 10 years on the NHS and social care is impressive. Older people have benefited disproportionately from that record investment, which is frequently forgotten. There has been improvements in acute care, hip replacements, cataract operations—people used to have to wait years for such treatment. Older people have benefited more than any other group in our society from those tremendous advances.

The hon. Gentleman referred to a piece of work conducted for him by the right hon. Member for Charnwood (Mr. Dorrell)—a very distinguished former Secretary of State for Health—detailing a radical transformational vision for the future of social care services in this country. It stated that we needed better and more integrated commissioning between health and social care, but that was the end of the comments on the Conservative party’s position for the future of social care, although I am sure that more will be said in the future. Nevertheless, I genuinely welcome the fact that the hon. Member for Eddisbury cares passionately about the issues before us and seeks, wherever possible, to find consensus on them.

I endorse what the hon. Gentleman said about those on the front line of delivering services. The difficulty with debates such as this is that they are usually based on a deficit model of care. We highlight all of the appalling and dreadful failings and abuses taking place. Of course, too often elderly people and their families describe those circumstances to us and we have a duty to act. Equally, however, every day of the week, in every community, people on the front line of NHS and care services do an extraordinary job, frequently in very difficult circumstances. We should make that clear when we talk about our overwhelming responsibility to improve the system and to ensure that cases of neglect, abuse and poor care continue to be minimised.

Politicians accept the notion that the great national and international challenges facing us are climate change, the effects of globalisation and fundamentalist terrorism, but very few people acknowledge that demography should be up there as one of the top four or five public policy challenges facing our society and those in many similar countries. People are now living longer, which means that more people have complex conditions such as dementia. Furthermore, people have very different expectations. These days, the vast majority of people, given an authentic choice, want to remain in their own home rather than enter institutionalised care, whereas, perhaps 20 years ago, our parents or grandparents were
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resigned to the fact that they would live to their 60s, if they were lucky, and spend the latter part of their life in institutionalised care.

Members of the baby boom generation are increasingly concerned about those issues, not only because of self-interest and worries about their own future, but because they are coming into contact with the health and social care system through the experiences of their ageing parents. Frequently, those sons and daughters find the system frustrating, particularly the division between health and social care. They also find that their elderly parents are not treated with the respect that we would like. I have set a test; people should ask, “If the care is not good enough for our mothers and fathers, why should it be good for somebody else’s?” That simple test should be applied to every NHS ward, nursing and residential home and domiciliary and day care service.

The NHS and social care systems do not function in isolation from the rest of society. We have a deeply negative culture and attitude towards older people in society generally, and it is frequently reflected in the NHS and social care systems. I am a great believer in the human rights legislation being the starting point for, and the heart of, health and social care thinking, systems and policies, but even if we had a utopian application of the Human Rights Act 1998 in its strictest sense, we would still need to address some major cultural and attitudinal issues. Older people are not just passive recipients of our sympathy; thankfully, they make a tremendously positive contribution to their communities and our society, and we should highlight it far more.

Several issues were raised in today’s debate and in the report. First, I shall describe what the Department of Health is trying to do internally to ensure that human rights have a far more significant role in the development of policy. The hon. Member for Eddisbury referred to better policy-making guidance for officials in the Department. The guidance includes clear references to a human rights perspective and the consequences of human rights legislation. The impact assessment process is relevant to all policies, and equality is an important part of that. Part of equality is human rights and the human rights legislation. The Department is also working on a human rights e-learning tool, which will be available in the autumn. The tool is designed to make people far more aware of the position of human rights at the heart of development and training.

I shall deal with the Department’s ability to influence change on the ground. First, on the YL judgment, there is absolutely no doubt that Parliament and the Government intended publicly funded residents of private homes to be covered by the human rights legislation. As a consequence of a court judgment, they are not, but the Government are absolutely determined to ensure that the original intentions of Parliament and the Government are restored. The question is how do we best do that in terms of the legislative process? Discussions are active and ongoing between myself and ministerial colleagues in the Department of Health and the Ministry of Justice, and we will be able to make clear to hon. Members in the near future how we intend to correct that anomaly.

The hon. Member for Leeds, North-West expressed some concern about self-funders. Correcting the YL judgment would deal simply with people who were publicly funded, but because social care is a means-tested system, an increasing number of people are self-funders.
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Owing to the implications of the original focus of the Human Rights Act, it is much more difficult and complex to extend the correction of that anomaly to self-funders, because we would then get into a situation involving the definition of “public authority”. On the sentiment, however, we have a responsibility through whatever means to ensure that in a means-tested system, self-funders have far greater protection—even though it may be difficult to do so through human rights legislation.

A major part of the social care reform programme that will begin in every local authority area over the next three years will be an end to the “no help here” culture, in which people who fund themselves, or their families, are essentially left to navigate the care system alone. The transformation programme seeks to commit local authorities no longer to have a “no help here” culture. Depending on its implementation and delivery, I think most people will welcome it.

The hon. Member for Eddisbury rightly raised the right of people to complain beyond the organisation or provider about whom they are complaining. The difficulty is that if people are publicly funded recipients of care, they can go to the local authority, use its complaints procedures and ultimately go to the ombudsman, but if a self-funder wants to make a complaint, they can go only to the provider against whom they are making the complaint; there is no independent vehicle or organisation to which they can turn. We must do something to address that anomaly, and officials are considering the issue. I am not able to tell the Chamber the solution that we have come up with, but we must create a level of independence for self-funders when there is nowhere for them to go other than to the organisation against which they are making the complaint.

The Government remain committed to minimising mixed-sex accommodation in the health service. This year in the NHS operating framework, we have set stretching targets for every strategic health authority and primary care trust to minimise mixed-sex accommodation. We have made much progress over the past 10 years, but not as much as we had hoped, and the only difference of emphasis is the definition of mixed-sex wards versus mixed-sex accommodation. My colleague Lord Darzi made it clear that he thought the term “mixed-sex wards” was an error and we should not have made a commitment to abolish them because it is unachievable. However, we remain committed to the minimisation of mixed-sex accommodation in the health service, and we have made it clear to the NHS locally that we expect it to be a priority where there has not been as much progress as we expected.

Premature discharge is a very difficult issue, because if older people are in hospital for a prolonged period unnecessarily, all the evidence suggests that their mental and physical health deteriorates. The challenge is to ensure that we have in every community an appropriate range of provision—intermediate care, step-down care, proper domiciliary and day care services—and the appropriate relationship between the local NHS and local government, so that, from the point of view of patients and carers, that Berlin wall does not get in the way.

As my hon. Friend the Member for Hendon said, it is important that we get the issue right for individual patients and in individual circumstances. It is irresponsible to discharge people when they have not fully recovered
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or into a care setting that is not appropriate to meet their needs. Overall, however, it would be a mistake to take the pressure off the policy of getting people out of hospital as quickly as possible, because from my experience of my relatives and other older people, the longer they remain in hospital, the less likely they are to make a full recovery. But that depends on our having appropriate alternative provision available.

Mr. Dismore: I certainly think that that approach to discharge is the right one; I do not dissent from it. Our concern was that without a degree of flexibility, either in the rules or elsewhere, that ideal will not be reached. We recommended guidance from the Department that would effectively put in black and white what my hon. Friend just said. Will he consider whether it would be appropriate to produce such guidance?

Mr. Lewis: What is appropriate is that people implement best practice in care. If we need to clarify that, I am certainly willing to do so, but I would not want to give any impression that we were returning to the days when older people were left to languish on acute NHS wards, entirely inappropriately, for long periods, which led to a deterioration in their mental and physical health. We can certainly consider how to make it clear what best practice is.

I shall run quickly through some other relevant changes that we are making. In terms of messages to the NHS, we have issued “Human Rights in Healthcare”, a framework for local action. In guidance on how NHS trusts should implement equality schemes, we have included age, even though there is no legal requirement to do so. As for the regulators, the Healthcare Commission and the Commission for Social Care Inspection have approached their regulatory responsibilities with a strong human rights focus, particularly CSCI when making judgments about the quality of social care provision. In respect of the new Care Quality Commission, there will be new provider registration requirements from 2010. We will consult on those and make it clear that the convention on human rights should be a significant guide for the new requirements under the commission.

On the training of front-line staff, we are bringing together regulators and providers of education and training at an event in April at the Equality and Human Rights Commission, specifically to consider those who have the most influence over the training of leaders, managers and front-line staff. We want to talk to them about how the content of training can more appropriately reflect human rights legislation and a human rights culture. We will hold a similar event in May, but it will be aimed at front-line staff, leaders and managers in the health service and social care system.

I should like go into more detail about the other levers that will make a difference to achieving the aims of the Human Rights Act. I shall just reel those off before bringing my remarks to a conclusion so that my hon. Friend the Member for Hendon can speak. I believe that world-class commissioning should make a major difference in securing human rights. I believe that our national campaign to put respect for dignity at the heart of health and social care is making a difference, and I shall announce the extension of that campaign
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soon. I believe that the development of CSCI standards towards star ratings will make a difference, as will the development of a national dementia strategy this year.

The roll-out of psychological therapies means that older people in every part of the country will have much greater access to such therapies. The new deal for carers, which will be announced by the Prime Minister later in the spring, will hopefully lead to major changes in the experience of family members, who are often not treated as we would like them to be treated by the health and social care system. Equally, caring itself has an impact on the health of carers, and we need to consider that as part of the new deal.

I have referred to the transformation agenda in social care. Putting more power and control into the hands of the people who use the system through personal budgets and greater information, advice and advocacy is far more likely to lead to packages of support consistent with the Human Rights Act 1998 than the historical or traditional way of providing services. We are reviewing the entire system of adult protection in this country, and that review will cover the way in which vulnerable adults are protected by the health, social care and criminal justice systems.

I have mentioned the Green Paper on the future of the care and support system, and my colleague Lord Darzi is in charge of a review that will ask, “Having fixed the foundations of the national health service, how do we move towards creating a world-class health service?” Creating a world-class health service involves more than just celebrating the fact that most people in this country are very satisfied with the quality of clinical care that they receive from the NHS. People are nowhere near as satisfied with the personal care that they often get on NHS wards, for example, and that is particularly relevant to older people, and to customer care. As well as improving clinical care in the NHS and the relationship between the NHS and social care over the long term, it is incredibly important that we improve the personal care, not just the medical care, that people receive, in the NHS.

We are also considering a new constitution for the NHS, with a focus on rights and responsibilities for both staff and patients as well as on greater accountability to local communities when making decisions about the NHS than may have been the case in the past. Culturally, there has not been the same openness in the NHS as in local government and other public services, so we need to consider what mechanism we can introduce to make the system more accountable and give patients and communities more power and control over the decisions that are made and the services that are developed.

Mr. Dismore: My hon. Friend has touched on most of the issues that I raised, but I should like to ask him about two in particular. One is the British Institute for Human Rights pilot. When will the evaluation be completed, and when will the subsequent roll-out happen? The other is the whistleblower duty. Will that be included in the care standards regime?

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