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Joint Committee on Human Rights Appendices to the Minutes of Evidence


Memorandum by the Department of Health


1.   What efforts have been made so far to implement the Act, and in particular, to build a "human rights culture"?

  In the countdown to the HRA coming into force, three levels of staff development seminars were held across the Department. In depth training of Department of Health (DH) solicitors, awareness-raising events for all staff and training seminars for middle and senior managers. A follow-up session was held for senior managers in mid-October 2000. DH Branches are now expected to build into training plans, a continuing programme of staff development to raise knowledge and understanding of human rights to ensure that they are able to take practical steps to ensure compatibility when developing legislation, policy, guidance or procedures. A staff guide on how to approach assessment of the ECHR in policy development has been developed. Updated material on the HRA is available on the electronic intranet for staff and human rights pointers have been built into the Private Office Guide. A circular was issued to the NHS and Social Services about their duties under the Act. A series of dedicated seminars was made available to NHS senior managers last summer and the HRA is being built into organisational development of the new Primary Care Trusts. Arrangements are currently being put into place to support health authorities and trusts with access to a database on human rights developments. General material on human rights in health and social care is available on the DH, Social Care and NHS Internet sites.

2.   How has the Act affected the approach to human rights issues and what have been the consequences both for policy-formation and for the delivery of services?

  Since 1953 the UK Government has been observing the ECHR. Prior to the introduction of the Human Rights Act, policy on health and social care and service delivery aimed to reflect that. Nevertheless we acknowledge that the implementation of the Human Rights Act provides a significant opportunity to raise awareness of human rights issues, and promote a human rights culture in the services. Our approach therefore is to build on best practice by mainstreaming thinking on human rights within national parameters and standards for the services. The approach to implementation continues through quality management and performance assessment in the NHS and this coincides very well with the modernisation agenda and the NHS Plan.

  Arrangements that were coming into place on the ground in 1998 are now firmly established and producing good results. Here are some examples.


  Clinical governance is the lynch pin in the local quality management agenda and is backed by a national framework of local development programmes and support from the roving National Clinical Governance Team. The Commission for Health Improvement (CHI) monitors clinical governance arrangements in each Trust every three-four years, and also investigates management of services or incidents. National Service Frameworks (NSFs) set out standards and models of service to help reduce unnecessary variations in access and delivery. Mental Health NSF published in 1999; Coronary Heart Disease in 2000 and NSFs for older people and diabetes are expected this year. Implementation is monitored by CHI.

  The National Institute for Clinical Excellence (NICE) is well into its work programmes, providing objective appraisals of new and existing treatments and producing clinical guidance. NICE has given guidelines on a number of key drugs, including taxanes for ovarian and breast cancers, so improving their availability to patients. Implementation of NICE guidelines at Trust level is monitored by CHI.

  Through the NHS Performance Assessment Framework, all health authorities and trusts have delivery of services assessed against high level clinical and performance indicators. Traffic light status decides the level of remedial intervention and scrutiny.

  As part of implementing the NHS Plan, a national system for reporting adverse incidents is being developed. The Modernisation Agency has been formed to disseminate good practice.

  New policy developments in health and social care are explicit about HRA issues. For example, the Mental Health White Paper emphasises the need to safeguard human rights in the development of any new mental health legislation. During 1999 the Mental Health Review Tribunal (MHRT) adjusted its systems to ensure that cases were listed speedily and reduced backlogs and waiting times. During 2000 a training strategy that provided MHRT members with the skills and knowledge to recognise HRA issues and deal with them appropriately was rolled out. A pack providing resource materials and guidance was developed by the MHRT Regional Chairmen and issued to all members ahead of October 2000. Arrangements for the swift dissemination of judgements and case summaries have been set up to ensure the Tribunal remains abreast of changes.

  The Chief Medical Officer's recent advice on organ retention, issued at the same time as the Alder Hey Report, makes specific reference to the HRA, with particular emphasis on Article 8. However it makes clear that the question of whether removal, retention and use of tissue from a dead family member constitutes lack of respect for private and family life has not yet been determined by the courts.

  As promised in the NHS Plan, the Department is conducting a major review of consent practice with the assistance of an advisory group involving patients, families and carers as well as health service professionals. It is anticipated that a range of guidance and documentation will be issued to support the consent process throughout 2001 in which the Human Rights aspects will be fully taken into account.


  The modernisation agenda in social care also affirms the best practice inherent in human rights development. Human Rights considerations are also part of social care policy development, for example in the field of learning disability. A number of national bodies are under development aimed at improving social care. These include the General Social Care Council which will also replace the Central Council for Education and Training in Social Work (CCETSW) and will register Social Care workers and publish Codes of Practice; the National Care Standards Commission which will keep a register of care homes; the Social Care Institute of Excellence, which will identify and disseminate what works best; and the Training Organisation for Personal Social Services (TOPSS) which develops care standards including Human Rights issues.

    —  Most care homes are managed by the private or voluntary sector. The Department, TOPSS, and CCETSW will drawn attention to the need for all social care providers to comply with the Human Rights Act.

    —  The Social Services Inspectorate inspect the quality of local social care services, and as mentioned at paragraph (1) above, the Inspectorate's standards are built on human rights-compliant policies.

    —  Circulars are issued every year advising local authorities of the priorities for spending their allocation of Training Support Grant, and requiring them to draw up local training plans. Last year's and the forthcoming circulars include training for staff in Human Rights Act issues.

    —  TOPSS is working to develop a training strategy for workers in social services as well as a key skills framework to identify and fill skills gaps. Standards which make up the skills framework are being drafted and include HRA issues.

    —  Of 150 social services departments contacted last Autumn, about half of social services management teams had discussed the HRA; a further one fifth had reported to elected members; and the remaining third had also agreed to an Action Plan.

3.   What have been the implications of any court judgements on human rights matters since the Act came into force?

  There have been very few cases in the DH policy area that have been decided since implementation and where human rights points were raised the previous legal position has been upheld (for example the two recent cases involving patients in a permanent vegetative state—NHS Trust A v Mrs M and NHS Trust B v Mrs H [2000] EWHC 29, 25 October 2000). However there are currently a number of judicial reviews pending in which human rights points have been taken particularly in the mental health legislation field. There have been no declarations of incompatibility to date and no significant changes to practices and procedures have been made thus far as a result of court rulings, but the Act has influenced recent policy developments in mental health and organ retention. There have been two recent judicial reviews by patients against London MHRTs, about whether hearings were unlawfully delayed (ex parte C and ex parte A). the judgments reinforce the tribunal's continuing efforts to arrange hearings within accepted timescales. There are arrangements in place to monitor cases involving other Departments which may have implications for DH as well as those in which DH has a direct interest.

4.   What impact has the Act had on everyday life?

  It is difficult to judge how public perception of individual human rights has affected the way patients and service users approach health and social services. The growing awareness of the Act amongst those working in the health and social care fields in the statutory, voluntary and independent sectors seems likely to result in more awareness amongst the general public and service users in particular of its potential relevance. For example, the Department's Public Enquiry Office is fielding a lot more calls where people mention human rights. The Constitution Unit in the Department dealt with about 30 enquiries from the public (by post, e-mail and telephone) in the six months to January 2001. The revised guidelines Decisions relating to cardiopulmonary resuscitation issued recently by the British Medical Association, the Resuscitation Council (UK) and the Royal College of Nursing, state clearly that policies about these decisions require review following implementation of the Human Rights Act.

5.   How has the duty under section 19 to make statements of compatibility or non-compatibility with the Convention in relation to Government bills been addressed and what problems has this process created?

  DH follows Home Office guidance on statement on compatibility/non-compatibility, and obtains legal advice as necessary. The Home Office guidance was published in The Human Rights Act 1998: Guidance for Departments in June 1999 and is available on the website:

March 2001

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