Clause
5
“Health
or social
care”
Kelvin
Hopkins:
I beg to move amendment No. 81, in clause
5, page 3, line 12, at end
insert
‘and section
[Application of Human Rights Act
1998]’.
The
Chairman:
With this it will be convenient to discuss the
following: Amendment No. 82, in
clause 157, page 103, line 29, at
end insert—
‘( ) Section
[Application of Human Rights Act
1998]’.
New
clause 3—Application of Human Rights Act
1998
‘Any person providing
health and social care within the meaning of section 5(2) and section
5(3) is deemed to be a public authority in relation to the performance
of those functions for the purpose of section 6(3)(b) of the Human
Rights Act 1998 (c. 42) (acts of public
authorities).’.
Kelvin
Hopkins:
I am pleased to have the opportunity and, indeed,
the responsibility, of speaking to this important group of amendments
and the new clause.
They would bring private and voluntary sector health and social care
providers within the scope of the Human Rights Act 1998.
Thousands of older and
disabled people do not have access to the protection that they were
promised under that Act after a legal loophole was created by a series
of judicial rulings. The amendments would rectify that error, and
ensure that bodies that provide health and social care as defined in
the Bill would be required to act compatibly with the rights and
freedoms contained in the Human Rights Act when performing their
functions. The measures would close the current loopholes in the 1998
Act that mean that it does not cover people who receive care in a
private or charity care home. Although that would change the status of
private and charity sector providers of health and social care in
relation to the 1998 Act, all state services, including NHS treatment
and publicly run residential care homes, are within the scope of the
Act. The amendment would ensure that people who receive contracted
services are guaranteed the same levels of protection and rights to
redress as people who receive services from the state.
Improving the quality of
health and social care must be a high priority for the Government,
particularly because I support them. It is essential that all health
and social care services provide good quality care that respects the
rights and dignity of all older and disabled people. The Human Rights
Act applies to all public authorities and other bodies when they are
performing
“functions of
a public
nature”.
However, in
2002, a court ruled in the Leonard Cheshire case that private voluntary
sector care providers, including those caring for locally funded
clients, should not be considered as performing public functions. In a
recent test case in the House of Lords, YL v. Birmingham city
council, their lordships confirmed by a majority of three to two that
narrow interpretation of the Human Rights Act. The Government
intervened in the YL case and made clear their desire to see private
and voluntary sector care providers fall within the scope of the
Act.
On Second
Reading, the Government said that they would address the lack of human
rights protection for older and disabled people in care homes by
regulation. My hon. Friend the Minister
said:
“We hope
to be in a position to tackle that in the forthcoming Green Paper on
the British Bill of Rights and duties, which would allow us to deal
with the matter in the wider context of the public authority
definition. Including that definition in the Bill causes a problem
because it is so vast. However, we will strengthen the regulatory
powers in the measure to ensure that the care quality commission can
enforce the requirements in line with the relevant provisions of the
Human Rights Act.”—[Official Report, 26 November
2007; Vol. 468, c. 105.]
That
expresses the hope of including something in a Green Paper, not a
commitment to including the provision in the
Bill.
Although
the Government’s clear commitment to solving what is a pressing
social problem is welcome, the proposed solution is inadequate. It is
clearly important to promote the centrality of human rights to the new
regulatory framework. However, regulations under the Bill cannot be
used to close the loophole in the Human Rights Act, because
regulations—secondary legislation—cannot be used to
change the meaning of primary
legislation. Even if the regulatory route envisaged by the Government
provided the Care Quality Commission with greater powers than those
already conferred on public authorities by the Human Rights Act, it
would provide no direct remedies against care providers for victims of
human rights violations. The existence of legal remedies drives broader
cultural change, as I said, so giving people the confidence to assert
their rights would provide service providers with an extra incentive to
protect and fulfil them. The provisions in the Bill
will allow care home residents or their representatives to complain to
the care home but, in many cases, they will not be able to take their
complaint further. The new commission will not have the power to
investigate complaints from individual residents. The only other
possible residual route is to make a complaint to the local authority
or to use the NHS complaints procedure, depending on the body funding
the placement. However, the scope of those parallel complaints
procedures is limited to their statutory functions and does not extend
to care standards. For example, a complaint that related to an
arbitrary eviction engaging the right to respect the home life could
not be investigated under the statutory complaints procedures. Access
to the health service or local government ombudsman would then
be precluded for the same
reasons.
12.30
pm
If the law is
not amended, there will continue to be the prospect of significant
human rights violations for which the victim has no effective remedy
under domestic law. It is vital that all disabled and older people be
given proper access to a legal remedy for all human rights abuses.
Following the YL judgment, it is clear that only primary legislation
can secure full access to justice for older and disabled people under
the Human Rights Act. Previously, the Government’s view was that
the creation of the loophole was unintended and that all care home
residents should have a legal remedy against care providers under the
Human Rights
Act.
When introducing
the Human Rights Act, the then Home Secretary, my right hon. Friend the
Member for Blackburn (Mr. Straw), said that “public
authorities” should extend to private providers fulfilling
public functions. He used the following
words:
“The
Government have a direct responsibility for core bodies, such as
central Government and the police, but they also have a responsibility
for other public authorities, in so far as the actions of such
authorities impinge on private individuals.”
He went on to say that the Human Rights
Act
“had to have a
definition of a public authority that went at least as wide and took
account of the fact that, over the past 20 years, an increasingly large
number of private bodies, such as companies or charities, have come to
exercise public functions that were previously exercised by public
authorities.” —[Official Report, 16 February 1998;
Vol. 306, c.
773.]
Following the
YL judgment, the then Parliamentary Under-Secretary of State with
responsibility for human rights in the Ministry of Justice, the
Baroness Ashton of Upholland
said:
“I am
particularly interested in investigating how to use a human rights
framework to ensure that all older people in care
are looked after properly...The noble Lord will be aware that one
of the issues considered in the judgment was whether the Human Rights
Act applied only to those citizens in care homes that were publicly
funded. My ambition is to cover all elderly people in care, and I
intend to do so.”—[ Official Report, House of
Lords, 27 June 2007; Vol. 693, c.
597.]
Angela
Browning:
I am listening with a lot of sympathy to what
the hon. Gentleman is saying, but will he clarify something? In recent
years, direct payments have been introduced and used by people who
would certainly qualify under clause 5(3) as individuals needing
personal care and other practices. In the case of direct payments,
although the funding comes through the local authority, it is at the
discretion of the local authority—and, often, just by mutual
agreement with the local authority—that the person who needs the
care becomes the employer, particularly those with learning
disabilities and such conditions. Therefore, they legally contractually
employ the person who carries out the service or the care for them,
although the core funding comes via social services. In drafting the
amendment, does the hon. Gentleman think that the people providing care
through a direct payments grant to those needing care would also come
within the scope of the clause, or does he think that because they are
legally the employer, employment law and other legislation would kick
in
instead?
Kelvin
Hopkins:
The hon. Lady makes an important distinction but
provided that the effect is to ensure that everyone in any type of
care, however it is contracted, is protected under the Human Rights
Act, I am happy. The amendment may need further amendment at a later
stage during the progress of the Bill, but my intention is to ensure
that everyone is covered effectively by the Human Rights
Act.
Nine
out of 10 care homes are within the private or charitable sector
following a range of privatisations over many years. However, under the
law as it stands, the scope of the Human Rights Act does not directly
extend to those care homes, which means that residents of independently
run care homes who experience human rights abuses cannot use the Act to
challenge the care home provider. There is widespread and serious
concern from, among others, the British Institute of Human Rights that
such a situation exists. The institute has convened a group of more
than 15 disability and human rights organisations—some of which
have provided separate briefings to the Committee— including
residential care providers, as well as statutory bodies that share a
concern about the protection gap. I ask the Minister to support the
amendment in order to close the loophole in the law and to ensure that
the Human Rights Act protects older and disabled people receiving
health and social care services, regardless of the provider. It is
unacceptable that because of changes—perhaps moving from a
public home to a private provider—the provisions of the Human
Rights Act should be removed from someone in care.
The evidence
shows that closing the loophole is necessary and urgent. A number of
cases show a stark cruelty and lack of care. We have concerns about
malnutrition and dehydration, including meals being taken away before
the patient can eat them, or insufficient help with eating and
drinking. There is also a lack of privacy, dignity and confidentiality.
The hon. Member for Eddisbury spoke of people who had just undergone
operations
and who were still unconscious not being treated with dignity. Indeed,
some individuals are being left in their own urine or excrement.
Neglect and carelessness is another problem; I include poor hygiene and
the rough handling of patients, with bullying, patronising and
infantilising attitudes being taken toward older people. I have a list of real examples
but I shall not read them out in full. People are being neglected, and
becoming bedridden and developing pressure sores. As we heard earlier,
people are being over-medicated to keep them docile. Chronic
understaffing is another problem; indeed, in one home a single male
carer was left on his own to look after 30 older women. That is not
acceptable, and I hope that other members of the Committee would
agree.
Sandra
Gidley:
I am sympathetic to the argument that the hon.
Gentleman is developing, but would not the single carer in charge of
those 30 people be picked up under the Care Standards Act
2000?
Kelvin
Hopkins:
I am sure that they would—one hopes that
they would—but as I said earlier, the Human Rights Act is
important, in that it sets a framework of law to underpin
people’s rights and to ensure that the culture changes. When
such things happen—inspectors cannot be there all the
time—people should know that the regulations are backed by the
force of law.
As I
said, I could mention many other cases, and there are other issues
concerning self-funding care home residents. The amendments would also
cover care home residents who funded their own social care. We believe
that it is vital to protect all older and disabled people, regardless
of who pays for their care.
There is a danger in drawing
artificial distinctions between publicly and privately funded
residents, as Lord Mance noted in his ruling in the YL case. He
implored care homes to
“view and treat all such
residents with equality”.
He concluded his judgment by sending
this message to
Parliament:
“if
additional protection is to be achieved by statutory means, it is no
matter for regret that this should be done without distinguishing
between residents in one and the same care home who on the one hand
arrange and fund their own care and accommodation and others who on the
other hand benefit from local authority assistance to arrange and fund
such care and
accommodation.”
Other
issues will need to be debated later, but I believe that this question
is of fundamental importance. I hope that the Government will accept
the amendment. Simply expressing a hope that we can bring in
regulations or legislation at a later stage is not sufficiently strong.
I hope that my hon. Friend the Minister will undertake today to
guarantee that the Bill will include a guarantee that the Human Rights
Act 1998 will apply to all residents of care homes, whether in the
private or the public sector. I rest my case. I hope that others will
support me.
Mr.
O'Brien:
I am grateful to the hon. Member for Luton, North
for tabling the amendments and the new clause. We heard a genuine
exposition of the reasons why the force of the point carries such
impact with so
many Members across the House. I pay tribute to him for being a
consistent and sincere advocate of the centrality of human rights,
which are core values of what we think and what we pass as
law.
The hon.
Gentleman will be aware that some of what his amendment would achieve
was the aim of a private Member’s Bill brought in during the
previous session by one of his hon. Friends. However, the
Solicitor-General, the hon. and learned Member for Redcar (Vera Baird),
who was then the Minister with responsibility for such matters, chose
to talk it out—[Interruption.] The Government Whip
continues to chunter from a sedentary position in a partisan fashion.
We said at the time that we have always wanted the extraordinarily
complex issues raised by the amendment to be considered in detail in
Committee. I have a lot of sympathy with the hon. Member for Luton,
North when he said that the Government’s response, which was
effectively to park the matter until a Green Paper on rights can be
produced, is insufficient.
Kelvin
Hopkins:
It seems clear that the Ministry of Justice is
committed strongly to that matter, as, too, I hope, is my hon. Friend
the
Minister.
Mr.
O'Brien:
Indeed. Joined-up government is always a hope,
and I, too, noticed what the Ministry of Justice said.
The matter must be considered
in detail because, as the hon. Gentleman made clear, a lot of very
important legal, conceptual and detailed drafting needs to be done when
incorporating the Human Rights Act into legislation. The consequentials
and complexities are extremely challenging, which is why we have said
that the matter needs to be considered in Committee, for which this
Bill seems to offer an ideal opportunity. That would forestall the
inevitable delay before the Ministry of Justice produces a Green Paper
and Bill to provide for the proposal before us. We hope, therefore,
that the Government will consider the matter very carefully and provide
some details for us to discuss.
Having said that, the hon.
Gentleman will appreciate that—this is consistent with what we
said during consideration of the private Member’s Bill that I
just mentioned—although we are interested in, and sympathetic
to, many of the concepts in his proposal, in the absence of detailed
Committee consideration, it would be inappropriate to support his
amendment to incorporate en bloc the Human Rights Act. That would have
huge ramifications and present many complexities and challenges.
However, I hope that he is successful in persuading the Minister to use
this Bill as a great forerunner to the detailed debate required to
deliver on his wholly laudable objectives.
At a personal level, I should
add that it was the wonderful United Nations charter enshrining human
rights that first led me to recognise that I had any political bones in
my body, because it gave rise to, and was the provenance for, the
wonderful organisation that is Amnesty International, to which I gave
many years of dedicated
work.
Sandra
Gidley:
We on the Liberal Democrat Benches support the
amendment; in fact, we feel so strongly about it that we added our
names to it. I hope that the
hon. Member for Luton, North does not do the usual thing, beloved of
some of his colleagues, and withdraw the amendment, because it would be
useful to put it to a vote. I hope that this will not be yet another
missed opportunity. Similar amendments were tabled during the passing
of the Equality Act 2006, at which time the subject was kicked into the
long grass of forthcoming reviews, which have now taken
place.
As has been
highlighted, another opportunity was missed during the consideration of
the private Member’s Bill that the hon. Member for Eddisbury
mentioned. That Bill was not enthusiastically or even lukewarmly taken
up by the Government. I am disappointed that, although we have an
opportunity to do something positive, yet again the subject of human
rights—this time of people in care homes—is being kicked
into the long grass with the mention of a forthcoming Green
Paper.
12.45
pm
All the time
that we wait, there is a lack of clarity around the issue, despite the
well-meaning attempts to incorporate the theme of human rights in some
parts of the Bill. The consequence is that, in the meantime, it will be
very difficult to tackle some of the problems that have already been
highlighted by the hon. Member for Luton, North, who made a number of
important points, which I will not waste the Committee’s time by
repeating.
The
recent report of the Joint Committee on Human Rights highlighted that
residents in care homes were among the people most vulnerable to human
rights abuses. That report outlined many of the concerns raised by the
hon. Gentleman earlier. Although I took issue with one of the examples
that he mentioned, it seems to me that every day there are examples of
practices that are regarded as routine, such as the over-medication
that was mentioned earlier, or making continent patients sit around
wearing incontinence pads because staff cannot be bothered to take them
to the toilet at the appropriate time. Tackling that type of practice
will not be a priority when the new commission is being set up and it
really beholden on us to try to tackle
it.
Anne
Milton (Guildford) (Con): I wonder whether the hon. Lady
would agree that it is a shame that tackling that type of practice
would not be a priority. She talked about raising the bar earlier, but
if one raises the bar on the apparently small things the overall
culture of the organisation improves and standards would go up
too.
Sandra
Gidley:
I agree entirely. I must also say at this point
that there are a lot of places that deal with that kind of problem
well. We all go into care homes as part of our jobs and we get a feel
for who is doing things well. However, there is not any real way that
we can tackle some of these problems.
It is about raising the bar
and I agree with the hon. Lady that it would be a shame if tackling
that type of practice were not a priority. However, the new commission
has a huge amount of work on its hands
and there is a lot for it to get its teeth into. It
will concentrate on the must-dos. If tackling that kind of practice
does not appear in the Bill as a must-do, in the early days at least,
it will not attract the attention that it
deserves.
Mr.
Brian Jenkins (Tamworth) (Lab): I support my hon. Friend
the Member for Luton, North, because I find it quite difficult, coming
from a party of equality, to understand how we cannot have equality in
the whole country when it comes to the right of appeal. I find it very
difficult to understand how a person can be placed in an old
folk’s home run by a local authority and be covered by the Human
Rights Act, but, through no fault of their own, if they are placed in a
privately run home, because the local authority fails to provide that
home, they are not covered by the Human Rights Act. I find it even more
amazing that, if someone is unfortunately not covered and funded by a
local authority but has to make their own provision, they are placed at
an even greater disadvantage and have even fewer safeguards.
Although I recognise that the
hon. Member for Eddisbury said that it is a legal nightmare when we
start to walk down this path, I do not think that the difficulty should
dissuade us from doing so. I hope that my hon. Friend the Minister will
find the right words at the present time to give an assurance to the
members of the Committee that we will not walk away from the problem
and that we will start to make an advance in dealing with it and to put
a framework in place attached to the Bill, or else provide a very early
opportunity for the House to vote on the issue, so that we can cover
those vulnerable people and thereby close what I feel is a disgraceful
episode: the level of inequality afforded to citizens in our
country.
Mr.
Bradshaw:
I would like to say at the outset that I have a
great deal of sympathy with my hon. Friend the Member for Luton, North
and the motivations behind the amendment that he has tabled. However, I
hope to persuade him, for a number of reasons, that this is not the
most satisfactorily or most legally watertight way of addressing the
issue now.
I
reassure my hon. Friend the Member for Tamworth and the hon. Member for
Romsey, who spoke on behalf of the Liberal Democrats, about the
safeguards that the Bill will put in place in respect of care
homes—particularly private care homes. I am happy to repeat the
assurance that the Government have made it clear that they are
committed to amending the Human Rights Act to ensure that all
independent providers of publicly funded care homes are covered by it.
We have agreed with the Ministry of Justice—we are at one on
this—that we will use the Bill to strengthen the regulatory
powers to ensure that the Care Quality Commission can enforce
regulatory requirements in line with the relevant provisions of the
European convention on human rights. That will apply to all care
providers under the
Bill.
In the
information that I have sent to Committee members, I have already
outlined some examples relating to registration. If my hon. Friend the
Member for Luton, North and other Committee members read that, they
will see that we indeed fulfil the commitment in honouring the
provisions not just of this Bill, but in wider legislation, including
human rights legislation.
We
are also underlining the fact that the purpose of regulation is to
establish essential minimum requirements that protect people’s
dignity and human rights. I have said that before and I will continue
to do so. We will be consulting on the nature of the regulations during
the passage of the Bill. I invite hon. Members to come back to the
regulation requirements when those are discussed. Regardless of the
scope of the remedies provided under the Human Rights Act, we expect
all providers of regulated health and social care to respect the human
rights of all service
users.
As
I am sure my hon. Friend will be aware because he has followed this
matter closely, there is a problem with the extension of the Human
Rights Act to contractual arrangements made by individuals that are
strictly private, because it also contains a right to privacy. A far
more sensible debate is going on, which we need to have in full, about
whether the Human Rights Act is, legally, the best framework for
regulating entirely private contracts. The hon. Member for Eddisbury
acknowledged the need to have a full and proper debate on that matter.
That is one reason why my hon. Friend’s amendment would not be
the best or the most legally watertight way of
proceeding.
Angela
Browning:
If the Minister does not accept the amendment
under the terms already published in the Bill, particularly clause
5(3), perhaps I could raise with him the point that I have already made
to the hon. Member for Luton, North. Subsection (3) defines what
“social care” includes. What is the Minister’s
understanding in respect of those people who contract privately with
others, who receive direct payments to provide a package of care or a
service where the contract in employment terms is directly with the
beneficiary of that service and the individual they contract with?
Employment law then comes into it, because there is a proper contract
of employment, albeit the funding is public funding coming through
social services. What are his thoughts on that matter, if he will not
accept the
amendment?
Mr.
Bradshaw:
We will debate clause 5 later. I will happily
address that question then, if I may, because my understanding is that
because a direct payment would involve a state role—that is,
state funding—it would fall under the auspices of the Human
Rights Act. I will happily clarify that for the hon. Member for
Tiverton and Honiton when we debate clause
5.
Mr.
O'Brien:
I am sure that this is relevant to whatever point
that the Minister is addressing. Would he try to provide the clarity
that we all need to understand why the Government have tabled
Government amendment No. 123 and Government new clause 7 pertaining to
clause 157? I understand that those Government amendments would extend
the closing of the loophole on the application of the Human Rights Act
to private care homes for the purposes of Wales, Scotland and Northern
Ireland but not for England. There seems to be a patent inconsistency,
and I hope that the Minister will address his comments to that point,
which has been a source of our
concern.
Mr.
Bradshaw:
Again, I shall happily and categorically clarify
that later, but I imagine that amendments address the need for
consistency throughout the United Kingdom, not the substance to which
the hon. Gentleman referred.
The
Government’s other fundamental problem with the approach of my
hon. Friend the Member for Luton, North to the amendment is, as he
acknowledged, that public authority goes much wider than just care
homes. We are working closely with the Ministry of Justice to find a
more comprehensive and sustainable solution to the problem. As my hon.
Friend acknowledged, the Ministry is committed to addressing the issue
and is bringing forward consultation on the Bill of rights and
responsibilities. It will draw on the wide range of expertise in that
process in a genuine spirit of consultation. I am sure that both he and
other Committee members will want to take an active part in that
consultation.
I have
some difficulty with the Conservative party’s approach. I
thought that its commitment to the Human Rights Act was at best
lukewarm, and there was a suggestion some time ago that it would get
rid of the Act, but again that may have changed.
In response to my hon. Friend,
I hope that he will understand that while I have great sympathy with
the motivation behind his amendments, we do not believe that in this
context they are the right way of achieving the aim that we all share:
protection of people, particularly vulnerable people, in all care
homes, including private care homes. In that spirit, I ask him to
reflect, and to withdraw his
amendment.
Kelvin
Hopkins:
May I say at the outset that I remain convinced
that we should have a commitment in the Bill to the application of the
Human Rights Act to residents in private care homes. It is clear from
what the main Opposition party said that there is not sufficient
support in the Committee to guarantee success for my amendment at this
stage, but I hope that at later stages of the Bill the Government or
others will table an improved amendment that the Government will
accept.
Mr.
O'Brien:
I hope that the hon. Gentleman took note of my
comment about the Government’s amendments to clause 157. It may
take us a little while to get there, so the Government will have an
opportunity to discuss with him whether, for consistency, England might
be included. The Minister’s response to the intervention seemed
to be that it would bring consistency to Wales, Scotland and Northern
Ireland. My point was that the Government seem to have favoured Wales,
Scotland and Northern Ireland in the incorporation of rights, but to
have excluded England. That seems extraordinary, and there may be an
opportunity for the hon. Gentleman to pursue his
ideas.
Kelvin
Hopkins:
I thank the hon. Gentleman for making that
important point. My concern is not to reduce pressure on the Government
to introduce legislation soon to give effect to the objective of my
amendment, so that care home residents in my constituency and elsewhere
are protected and have the same rights as those in public care
homes.
People have
come to my surgery with problems in private care homes that have had to
be addressed, and one was closed not so long ago. Such issues will not
go away until private care homes are covered by the Human Rights Acts.
The industry may not be keen on that, because it suggests that there
will be greater
pressure to perform well, and to behave decently to all their residents.
Some care homes do a good job, and I am not disparaging those that do
so, but clearly some do not. We need the force of law to ensure that
the human rights of private care home residents are guaranteed to the
same level as those in public care
homes. I shall
reluctantly withdraw my amendment, but I hope that improved amendments
will be tabled during the Bill’s progress in both Houses, and I
hope to speak
on them and to pursue the matter. It would not be helpful for my
amendment to be defeated, but I hope that the Government will not just
talk about future, more general legislation, but include in the Bill
the rights of those in private care homes. I beg to ask leave to
withdraw the
amendment. Amendment,
by leave,
withdrawn.
It
being One o’clock,
The Chairman
adjourned the Committee without Question put, pursuant to the
Standing
Order.
Adjourned
till this day at twenty-two minutes to Five
o’clock.
| 
