Memorandum submitted by Age Concern (H&SC 1)

 

1. Age Concern

1.1 Age Concern is the UK's largest organisation working for and with older people to

enable them to make more of life. In England, we are a federation of around 370

independent charities which share the same name, values and standards.

 

1.2 Age Concern England would be happy to provide supplementary oral or written

evidence to the Public Bill Committee.

 

2. Summary

2.1 Age Concern England welcomes the opportunity to submit evidence to the

Committee scrutinising the Health and Social Care Bill. The Health and Social Care Bill

must be focused on better outcomes for the primary users of health and social care:

older people.

 

2.2 Age Concern strongly welcomes the merging of the existing Healthcare Commission, Commission for Social Care Inspection and Mental Health Commission which will help to break down barriers between health and social care.

 

2.3 We are delighted the Bill also contains provisions to repeal the liable relatives' rules whereby spouses are liable for care payments of their husband or wife. Many older people will be pleased this unfair practice is to be stopped.

 

2.4 The Health and Social Care Bill should seek to protect the human rights of all older people and we urge parliamentarians to amend this legislation to close the current loophole in the Human Rights Act which exempts providers in the private and charitable sectors from the Act. Primary legislation is urgently needed to ensure protection of older people's human rights regardless of where they receive social care services.

 

2.5 The new Commission will need adequate resources to do its work effectively. We are very concerned that overall funding for this super-regulator will be far less than existing funding for the regulatory bodies that are being replaced. This may mean less frequent inspections and no capacity to take up complaints from individual patients and service users. People who fund their own care and who are not the responsibility of a local authority will still have no one to turn to if their complaint is not adequately dealt with by the service provider.

 

3.Close the Human Rights Act loophole and protect all older people

3.1 Increasing the quality of health and social care must be the Government's absolute priority. It is essential that all health and social care services provide good quality care that respects the rights and dignity of all older people. Nine out of ten care homes are within the private or charitable sector - but as the law stands the scope of the Human Rights Act does not extend to these care homes. This means that residents of independently run care homes who experience human rights abuses cannot use the Human Rights Act to challenge the care home provider.

 

3.2 Examples of bad treatment breaching human rights include:

Older people in care homes have been told they have to move to a different home at short notice - engaging Article 8 of the European Convention on Human Rights (ECHR) - the right to respect for private and family life.

There have been many cases of individual care home residents (who have no legal protection from eviction) being asked to leave a care home with minimal notice - sometimes as a response to a complaint about standards of care. This situation would also engage Article 8 ECHR.

Other examples of issues that engage Article 8 rights include disputes about care home visiting hours, restrictions on social relationships, or refusal to allow cohabitation with partners in the same care homes.

There have been many shocking cases of elder abuse within care homes, including by care home staff. Abuse is generally a breach of Article 3 (freedom from inhuman and degrading treatment) and in serious cases may also be a breach of Article 2 (the right to life).

 

3.3 Jointly with other charities and campaigns groups, Age Concern intervened in the recent YL case in the House of Lords which could have achieved a legal solution to this problem. Unfortunately, the YL appeal was not successful; by a majority of three to two, the Law Lords decided that the Human Rights Act as it stands cannot be interpreted as covering private care settings. This issue will not be resolved unless the Human Rights Act is amended, either directly or indirectly via other primary legislation.

 

3.4 Age Concern case study

The daughter of a care home resident made a formal complaint to the home after her mother had experienced delays in obtaining medical assistance for a respiratory infection. The daughter also complained to CSCI and to the local authority, which was funding the care home place. As a result of this complaint, the resident was given 28 days' notice to leave the care home. The home relied on a clause in the contract stating that it could be terminated following 'any circumstances or behaviour which the home feels may be seriously detrimental to the home or welfare of other service users.'

 

3.5 CSCI declined to deal with the complaint apart from during the course of their next planned routine inspection. The local authority also refused to investigate as it claimed that its complaints procedure only applied to block bookings of care home places, rather than individually purchased places. During the period of notice, the resident became ill and was admitted to hospital. The home refused to allow her to return when she was ready for discharge - even though she was still within her notice period. The resident was subsequently moved to another home where she died two months later.

 

3.6 The Human Rights Act is UK wide. Although the Health and Social Care Bill primarily covers England and Wales, there are several provisions in the Bill that extend to Scotland and Northern Ireland. We would argue that this Bill should be amended to allow it to be used as a vehicle to close the Human Rights Act loophole within the regulated social care sector in the whole of the UK. A more complete solution to the 'public function' problem in the Human Rights Act should be brought in via later legislation. The problems facing older people not covered by the Act are largely in the social care sector so rending this Bill would have a tangible effect upon older people today who should not have to wait any longer for their human rights to be guaranteed by law.

 

3.7 Age Concern calls for: An amendment to the Human Rights Act using the Health and Social Care Bill to protect the rights of people in independent (private and charitable) social care settings, including those who fund their own care.

4. The complaints procedure: fair and Independent

4.1 The complaints procedure should be clearly laid out in the Bill, should be available

to everyone receiving regulated health and social care services and should have an

Independent element As the Bill stands these basic principles are not guaranteed.

 

4.2 The complaints procedure that will be followed by the Care Quality Commission is not laid out in the Bill - information about how complaints will be dealt with should be included in the definition of functions In Chapter 2 of the Bill.

 

4.3 The existing, and very successful involvement of the Healthcare Commission in the independent review stage of the NHS complaints procedure will be removed. Age Concern believes that the lack of an independent element in the complaints procedure of the NHS will result in a huge increase in appeals to the Health Ombudsmen and in the volume of litigation. Currently requests for Independent review are over seven times the number of NHS Ombudsman investigations so the potential increase in the Ombudsman's workload if this independent review stage is abolished is massive.

 

4.4 The Bill has not been published with a legal aid impact assessment in relation to the reform of regulation. This impact assessment would have alerted other departments to the likely impact of this Bill as individual litigation increases as a result of the removal of independence in the complaints procedure.

 

4.5 Age Concern also believes that it is preferable to resolve a complaint before it reaches the stage of an appeal to the Ombudsman. Often this can be achieved simply through facilitating discussion between patients and professionals. Healthcare Commission complaints investigators often have the skills, experience and knowledge of professional values and culture needed to resolve complaints in this way, whereas an investigator for the Ombudsman carries out a different role. The Government should re-consider the involvement of the Care Quality Commission in individual complaints.

 

4.6 As the Bill stands, independent investigation of complaints will not be available to everyone in receipt of health and social care services. Those who pay for their own social care services ('self-funders') do not currently have access to the same statutory complaints procedure as those who have their social care paid for by the Local Authority. Those who pay for their own care are not the responsibility of the Local Authority. If they are unable to complain to the regulator they will have no one to turn to if their complaint Is not dealt with successfully by the care provider. Amendments should be brought forward to guarantee access to an independent complaints procedure for all those in receipt of health and social care services.

 

4.7 Age Concern calls for:

The complaints procedure the Care Quality Commission will follow should be laid out in Chapter 2 of the Bill, guaranteeing the rights of all users of health and social care.

Regulators to investigate individual complaints. Everyone receiving care wishing to complain about a service should be treated equally. The Bill should be amended to guarantee equal access to the complaints procedure.

The Care Quality Commission to have the power to be involved in individual complaints - the Bill should be amended to introduce this independent element of scrutiny.

 

5. Patient and user involvement

5.1 Patients and services users must have a strong role to play in any reformed system of inspection and regulation. The Bill currently has provisions requiring the Care Quality Commission to 'have regard to the views of and satisfaction amongst members of the public'. This provision must clearly serve the interests of people who receive treatment and care services and their families. Whilst the wider public may have views about overall service provision within their local area, involvement in inspection of individual services will be of more concern to people who actually use their services and their carers. The views of patients, service users and carers should be specifically included on the face of the Bill to emphasise that the Care Quality Commission has a particular duty to involve these people.

 

5.2 Age Concern calls for:

Amendments to the Bill to add the views of 'patients, service users and carers' to the general provision that the Care Quality Commission must have regard to the views of the general public.

A specific requirement to involve, patients, service users and carers in inspection should be introduced to the Bill.

 

 

6. Direct Payments - protection from financial abuse

6.1 Age Concern supports the extension. of direct payments to those without capacity using an agent. Agents are likely to be carers and relatives. Direct Payments allow people to buy social care services appropriate to their Individual needs in lieu of social services provision. However, arrangements for supporting users of direct payments and individual budgets and protecting them from financial abuse need to be adequate to safeguard people who lack capacity. As the Bill stands we are concerned that there is not adequate protection.

 

6.2 The current regulations on Direct Payments say that a local authority should be satisfied that a person's needs are being met by the provision of the payment. Age Concern would like to see an additional requirement on local authorities, added through the regulations attached to this Bill, to take active steps to monitor the care provided and to ensure that needs are being met. This would ensure that there are clear responsibilities on the local authority to actively ensure that the person is safeguarded against abuse, including financial abuse.

 

6.3 Age Concern calls for:

MPs to welcome the extension on Direct Payments should be welcomed but the Committee should seek assurances that people who are particularly at risk due to lack of mental capacity are adequately protected. By clarifying the duties of local authorities so that they actively ensure Direct Payments are used to achieve the intended care outcome would be a good step forward.

 

7. Clarifying ordinary residence

7.1 Age Concern welcomes the measures regarding Ordinary Residence that are in

the Bill but considers that they do not address some major problems that occur when a

person moves from one authority to another and in particular if they wish to move to a

care home in Scotland. Although in theory, it should not matter to the person if local

authorities are in dispute as to which authority should fund the person, in practice it creates a great deal of anxiety. In relation to Scotland, although many authorities do their best to ensure the person can move to the home of their choice, the different funding regimes of the two countries create huge difficulties. It seems a missed opportunity if the Bill does not attempt to address the range of problems that occur when people move away from the authority where they have lived.

 

7.2 Age Concern calls for:

The Bill to include a new clause clarifying the responsibilities of local authorities when people move to a care home outside their original local authority boundaries. The clause should particularly clarify the arrangements when people move to a care home In Scotland.

 

 

8. Enabling choice In NHS Continuing Healthcare

8.1 There are two issues relating to the lack of choice when a person is eligible for

NHS Continuing Healthcare, where the NHS pays for the total care package.

 

8.2 Firstly, when someone leaves hospital goes into a care home and is entitled to NHS Continuing Healthcare they have no rights to choose which care home they go into. Often someone in this position is at the end of their life and not being able to be in the home closest to their family members is very distressing. in some cases where NHS Continuing Healthcare is awarded once the person is in a home, the individual has to move if the home costs more than the NHS is prepared to pay. This issue is not only about exercising consumer choice, it is also often about respecting someone's human rights at the end of their life.

 

8.3 Secondly, a welcome recent development is that more people are now receiving fully funded NHS Continuing Healthcare in their own homes. With the increasing use of direct payments and Individual budgets by social services they often already have a care package of their choice in place. When the NHS starts providing funding, all the care arrangements an individual may have made when they received direct payments are stopped and the person receiving care has to accept a generic NHS care package. This can be highly disruptive to a well established care routine. Lord Darzi, in his interim report Our NHS, Our Future recognised the value of supporting and enabling people to tailor their care packages to their needs and to secure alternatives to traditional NHS provision. It would be within the remit of this Bill to address both of the problems identified above.

 

8.4 Age Concern calls for:

A new clause introducing the principle of choice into the system of NHS Continuing Healthcare would help to address our concerns about the lack of choice facing people leaving hospital and entering a care home.

A new clause to allow the NHS to pay via a pooled budget arrangement for the care of a person who already has an established care package (using direct payments) and wants to continue with this style of care. This would address the issue of disruption of successful care packages.

 

December 2007