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Nor does the amendment address the many failings identified in Government policy as regards the Human Rights Act. The Joint Committee on Human Rights report on the subject charted failings, under articles 2, 3, 8 and 14 of the European convention on human rights, in malnutrition and dehydration, which is a prime example, but also in inadequate assessment of a person’s needs; abuse, neglect and bullying; lack of privacy in mixed sex wards—another serious issue that
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many regard as a broken commitment by the Government—lack of dignity, especially for personal care needs; too hasty discharge from hospital; fear of making complaints, a subject on which we touched during discussion of an earlier group of amendments; and age, disability and racial discrimination. Given all that has been discussed about equality matters in relation to recent legislative proposals, that is a continuing worry.

May I highlight, I hope for the benefit of the House, how important the matter is and set the context to show why the amendments matter and why the process was important. The Bill went through this House in Committee and on Report and then went to the Lords. It seems that that process has moved the Government’s position. I pay tribute to the hon. Member for Hendon (Mr. Dismore), who has been a doughty champion for that approach, and to the hon. Member for Luton, North (Kelvin Hopkins), who was often supported by the hon. Member for Tamworth (Mr. Jenkins) in Committee It was important for the Government to listen—we like to think they did—to the Opposition’s arguments. In this area, the Liberal Democrat spokesmen also made a significant and important contribution. Many of the amendments relating to that area were in their names. The Government seem to have come to a seriously and significantly modified view.

According to the Government, MRSA affected about 6,000 people in 2006-07, and C. difficile about 56,000. By contrast, in 2006-07, 139,127 patients were discharged from hospital in a state of malnourishment. This is not just a malnutrition issue—it is also a human rights issue. The Joint Committee on Human Rights in its recent report “The Human Rights of Older People in Healthcare” noted that malnutrition and dehydration in care settings breached articles 2, 3 and 8 of the European convention on human rights. Figures cited in the Department of Health’s own nutrition action plan show that the cost of undernutrition is estimated at £7.3 billion a year, and a recent British Medical Journal study reported that about 20 per cent. of patients in hospital are malnourished.

Angela Browning: I am listening carefully to what my hon. Friend says, but as this legislation brings together health and social care, is he concerned about malnutrition among those, particularly the elderly, living at home with packages of social care, as well as those who are in residential or hospital care? Malnutrition among the elderly can cause not only general unwellness but symptoms that mimic other diseases, and often those diseases are not then identified.

Mr. O'Brien: Precisely. My hon. Friend makes a powerful point, again from her own experience. That was discussed at some length with the Minister in Committee. Although there was an absence of common cause on the malnutrition issue, we recognised, particularly in the health care setting, where there are some statistics one can get hold of, that it has been extraordinarily difficult to get the under-nutrition, malnutrition, or inappropriate nutrition figures out of the social care settings, whether they are local authority, public sector or indeed private sector. Almost everyone knows that some people will arrive, whether it is into a social care
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setting or into a hospital setting, malnourished. It could be part of their condition. At the same time, the issue has been the rise in malnutrition among those who leave hospital.

The thing about social care homes is that we do not have the same statistics— naturally, given that we are often dealing with the end of life—on people leaving to measure whether greater malnourishment has taken place. The weighing and measuring issues, which are addressed in the Bill, are important. Most of us remember from our childhoods that weighing and measuring were a natural first step in almost all interactions with the health or care services, not least in relation to health visitors. That is relevant to an earlier intervention on health and pregnancy. Such issues are vital to the future health of the people of our nation.

Angela Browning: That is particularly the case for the elderly, because as the body ages it does not absorb so well key minerals and vitamins from food, and deficiencies in vitamins and minerals in the elderly can lead to serious health consequences. That applies regardless of whether the elderly are cared for at home with a social care package, in residential or nursing homes or in hospital, where during longer stays there can be serious consequences.

Mr. O'Brien: My hon. Friend is right. Interestingly, her two most recent interventions demonstrate how this point applies at all vulnerable stages of life, both in the early and later years. Some of us rather wish it might also apply in the middle stage, as then there would be some solution to the difficult problem of controlling weight.

This is a serious issue. It is important that staff have knowledge and training, both in the care setting and in the hospital setting, where nurses are involved. They must recognise the importance of nutrition and have knowledge of it, and they must be able to monitor it. An appropriate amount of time must be available to care for people by ensuring that they eat regularly and eat the right things. People must be monitored for vital nutritional and vitamin values, particularly as an illness—or the condition of ageing—often means that digesting becomes more difficult.

This is a human right, and we have been anxious to understand how that would have a direct bearing on Lords amendments Nos. 51 and 61. The British Medical Journal figures that I recently gave reaffirm those provided by BAPEN’s—the British Association for Parental and Enteral Nutrition—screening week, an initiative that the Government claimed to support. However, the Department of Health chose instead to describe the figures as,

That was a surprise. Furthermore, the Government’s own figures, provided to me through a written parliamentary answer, showed that the number of under-nourished patients being discharged from hospital had risen by 84 per cent. since 1997. There has been a further discussion with the Minister on that point, and on what is described as an episode and how the percentages are reached. I acknowledge that there was some clarification of some of these statistics, but I believe that the Minister accepts that there is a vital issue here that must be considered. The question is whether the Lords amendments will be
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of assistance in respect of this prime example of a matter that is seen as a health issue but is in fact best described as a human rights issue. To do so enables us to define people’s entitlement, which in turn gives them rights. Rights confer power and are enforceable, whereas people have their health and care opportunities handed down to them from on high.

Mr. Graham Stuart: My hon. Friend spoke very quickly just now, so I may have misheard. It sounded to me as if he said that there had been an 84 per cent. increase in the number of patients leaving hospital suffering from malnutrition—and that in the 12th year of this Labour Government, with a near trebling of expenditure on the NHS. I wish through him to ask the Minister to explain to the House how that could have happened. I agree that being fed and looked after, particularly when one is elderly and vulnerable, should be recognised as a human right, but we need to have practical steps on the ground, rather than just more high-minded rhetoric.

Mr. O'Brien: As I said, there has been some further discussion about the precise way the figure of 84 per cent. was reached, but through written parliamentary questions and the answers to them we realised that this was not just an anecdotal issue of the sort that we as Opposition Members are, of course, always being fed. This became a serious issue, and it was highlighted in Committee. The question is whether the Lords amendments will give us an opportunity to address the issue. I hope the Minister will explain whether the 84 per cent. figure has been reduced, and how that is worked out. What matters, however, is that the trend is very worrying. A health service and social care service should not lose sight of the simple things that are very easy to deal with if the appropriate measures and expectations are in place.

Mr. Stuart: On a positive note, may I, through my hon. Friend, congratulate Hull royal infirmary? I recently visited it and raised the issue of malnutrition. It was taking it seriously. It was using a coloured plate system to identify patients at risk and was putting in place a series of measures to tackle the problem and ensure that there is not the increase in malnutrition in hospital in our local area that we have, sadly, seen across the country under this Government.

6.15 pm

Mr. O'Brien: I am glad to hear that. I was recently in the Hull, Haltemprice and Howden area, but unfortunately I did not have the opportunity to visit Hull—although I was, of course, pleased that other positive results came from that part of the world. My hon. Friend raises an important point. I must not get diverted too far from the topic of the amendments, but let me say that the red plate system, or the red tray system of Westminster city council, is a marvellous way of ensuring that those who need extra attention in gaining nutrition due to either lack of appetite or lack of will get that attention. It means that the caring staff have the opportunity to give that attention without the vulnerable person losing face or feeling that they have been singled out, and it works very well.

There is little evidence that the Government have decided to tackle this problem. Since the new year, they have failed to take the opportunities afforded by the
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publication of vital signs indicators for primary care trusts, the responses to the payment by results consultation and this Bill to demonstrate their intention to do so. None of the 83 vital signs targets relate to under-nutrition. It has been pointed out to the Department of Health that the lack of recognition for support services—such as for nutrition—in payment by results acts as a barrier to the commissioning of effective care pathways. Most damning was the voting down in Committee of an amendment that would have put tackling under-nutrition on the same statutory footing as tackling hospital-acquired infections. We could have avoided that situation. I was grateful for the full support that we received for that Conservative proposal from the Liberal Democrats, but, unfortunately, the Government failed to take it up, and we still do not see it. However, I think our rescue may come through the amendments in this group that give us the Human Rights Act application. Our approach should be to come from the human rights angle, rather than for the Bill to put under-nutrition and malnutrition on the same footing as hospital-acquired infections, however important they are. The latest available statistics show that MRSA and C. difficile affected about 62,000 people, whereas the number of people in a state of malnutrition when discharged from hospital only—forgetting the care settings for now—was more than double that at 139,127. We are not wrong to be deeply exercised about that, and to be critical of the Government because there is an opportunity to improve the health and well-being of so many people.

Mr. Stuart: As it has been recognised that these are human rights, how does my hon. Friend think that particularly vulnerable elderly people could use this right to take action in either a social care or health setting?

Mr. O'Brien: My hon. Friend raises an important point, although it would be straying outside the scope of the amendments to address the detail of that, and I am conscious that a Member who might well be able to provide an expert answer and who introduced a private Member’s Bill is present—the hon. Member for Hendon (Mr. Dismore). I think he would agree with me if I were simply to reassure my hon. Friend that what is best for those who both need the rights and may be in a vulnerable position—particularly in the absence of an independent and trusted body such as the community health councils, which used to be great hand-holders for those charting their way through the labyrinth of the NHS while still vulnerable and in need of it—is best summed up by the term “an advocate”. What they need is somebody who can on their behalf prosecute the chance for them to exercise the rights and entitlements that come from the broad ambit of a human rights approach to these matters.

Given the wider issues, it is a great shame that we have not had the opportunity to explore this issue, or the legislation addressing it, in depth in a Commons Committee stage. I dare say that that sentiment will be expressed by a number of people who have spent a lot of their time seeking to raise the issue in its broader sense. The Solicitor-General, herself a human rights lawyer, talked out the private Member’s Bill introduced by the hon. Member for Hendon on 15 June 2007. She could have allowed it the detailed scrutiny and consideration of a Committee stage—I supported that approach, as I
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know my colleagues were keen to do. As the Government waited until the Lords stages to table these amendments, we have been denied the opportunity of that detailed scrutiny.

In discussing this final group of amendments, as the programming constraints that were approved in the earlier motion still give us the time to do, I hope that a couple of hon. Members who have been steadfast in seeking to champion this matter may have the opportunity to catch your eye, Mr. Deputy Speaker. This particular area may thus be linked with so many of the debates that took place on the private Member’s Bill.

Kelvin Hopkins: I am pleased to have the opportunity to speak briefly to the amendments, because I had the pleasure of moving amendments in Committee on these matters. At that time, we did not move the Government very far, but I was pleased that the Minister later agreed to meet a delegation, including a consortium of outside organisations, as well as myself and others, to discuss the issues and has moved in a positive direction. I am grateful for that, as I am sure others are.

The problem we face is that the Human Rights Act 1998 applies to citizens in relation to the state, and that self-funders in private care homes do not have a relationship with the state in that context. It seems that we are moving towards a situation in which the others—those who are funded by local authorities in private care homes—will be able to exercise their human rights under that Act, as will all those in the few remaining public sector care homes.

My concern is about self-funders in private care homes. One can foresee an anomalous situation involving two residents in adjacent rooms, whereby one is funded by the state and protected by the Human Rights Act, and the other is not. That would clearly be unsatisfactory, and one would want to see some change. Such a situation arises from two changes that have taken place over the past few years, both of which I opposed. Although it was not opposed by the three major parties, I opposed the large-scale privatisation of care homes. If they were all in the public sector, there would not be a problem; and if all care home residents were funded by the state, as had been recommended by the royal commission on long-term care, there would not be a problem, but such people are in a double bind. One or other of those things does not apply to them, and thus they are in difficulty.

As I have said many times, in this Chamber and elsewhere, I would like a rapid move towards full state funding for all care home residents, paid for out of general taxation. I hope that at some future stage that will come to pass—I would like to think it will happen under my own Government—and I would also like the re-establishment of a strong public sector care homes sector.

Angela Browning: I have some sympathy with the hon. Gentleman. Does he recall that comparative standards in residential care in the public and the private sectors were discussed in a Committee evidence session and that, unfortunately, although there are always problems in both sectors, the comparison did not show the public sector in a very good light?


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Kelvin Hopkins: The hon. Lady is right. Individual care homes perform very differently in both the public and private sectors, and since that session there have been public reports of serious failings in the private care sector too. Many people, particularly those who cannot speak for themselves, have been suffering inadequate care. I think that we do not care enough, or properly, for our elderly and vulnerable, and that comes down to resources. The public sector care homes were starved of resources for a long time. Many of them are not modern, and they have been understaffed and under pressure. The local authorities, which have been under the financial cosh for a long time, have been doing their best, but perhaps they have been squeezing funding for care homes to the point where some of those homes have not been very good.

My own experience of a care home in my constituency, where my mother-in-law spent the last days of her life, was wonderful: the staff were directly employed and lived in the community, and the people in the care home came from the community. The care home was warm, friendly and caring, and my mother-in-law was as happy as she had ever been, given that she was nearing the end of her life.

Mr. Stephen O'Brien: The hon. Gentleman might be coming on to this, but he will have heard me say that one of our gravest difficulties in contending with this issue is part-funders. That is because their relationship comes partly through taxpayer support, but their contract is as a private individual in the private sector. Does he have some thoughts on that?

Kelvin Hopkins: The hon. Gentleman raises a further complication. Again, if everyone were fully paid for by the state, that complication would not arise, and that is the direction in which we want to move, but the Government will doubtless have to examine it.

One Conservative Back Bencher talked about a lack of care in the health sector in general. Although this Government have increased spending on health by enormous sums, our spending levels remain considerably behind those of Germany and France. I believe that the latest figures show that France spends about 2.5 per cent. more of its gross domestic product on health than we do—that is equivalent to £50 million per constituency. If we had spent an extra £50 million per constituency on health in every one of the past 30 years, we would be in a rather different position. Resources are still not as plentiful in the British health service as they are on the continent of Europe—in Germany and France—in terms of scanners, nurses, beds and so on. I want us to move further in their direction, with even more generous funding for health than we have now.

I want us to move towards the levels of funding in France and Germany. It is noticeable that in France one does not have to wait to see a doctor or to have an operation—I know from friends who live in France that that is the position. I want Britain to be like France; I do not want us constantly to pretend that the situation is much better than it is. It is not as good as it should be, even though it is a lot better than it was in 1997; we have made considerable progress since then. I urge my Front-Bench team to continue to press ahead with additional health service spending and to move towards the levels of expenditure in France and Germany. I am talking about not only the money, but the quality of provision that such funding will make possible.


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We will have this continuing problem with the Human Rights Act because of these anomalies in respect of self-funders. I have never supported the idea of self-funding or private care homes. We need proper funding and democratically accountable local care homes built into the community, where people are directly and permanently employed from the community. I am talking about people whose own relatives go to those care homes, as was the case in the care home in my constituency that I mentioned, which is now sadly closed. There was pressure from government to close a public sector care home because it did not have built-in, en suite facilities and all the other care home standards that the Government wanted. That care home has now gone, and the staff who worked in it have retired or moved on; that body of people who did such a wonderful job is no longer there. May I add that they were all solid trade unionists, belonging to my trade union, the GMB, and that some of them were even members of my party? They were wonderful people.

That is the sort of care that I want, where people are community-based and there is accountability to the local authority. People should be publicly funded in proper, well-funded care homes that are free to all at the point of need. We are some way from having that, but when we do, the Human Rights Act will apply to all care home residents because they will all be in a relationship with the state in terms of their care. I have made these points before, and I hope that my hon. Friend the Minister does not mind hearing them again. I thank him for the progress on this issue and I will support the amendments.

Sandra Gidley: I, too, welcome the amendments, and we should not let the other place take all the credit. It was clear from discussions in Committee that the Minister was sympathetic to the arguments that some of us were making. I was also part of the delegation mentioned by the hon. Member for Luton, North (Kelvin Hopkins). It was clear that the will existed to make the changes, and the Minister regretted that he did not have time to bring it to the Commons because work was needed on the detail.


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