Joint Committee On Human Rights Third Report


49. This Bill would require a social services authority to make a 'delayed discharge payment' to the NHS body caring for a patient if—

  • the NHS body has notified the social services authority that a hospital patient receiving treatment of a type to be prescribed by regulations could be discharged from hospital if specific community care facilities were provided, but cannot be discharged without those facilities being available, and

  • the social services authority failed to provide those services.

50. We have already given initial consideration to this Bill. In the light of it, our Chair wrote to the Minister, Ms. Jacqui Smith MP, asking—

  • why the scheme proposed by the Bill is not intended to apply to mental health from the outset;

  • why it is not proposed to apply the same scheme to local health authorities in cases arising under section 117 of the Mental Health Act 1983; and

  • what other steps are being taken to alleviate the risk, arising from a lack of aftercare services in the community, of violating of the Convention rights of mental health patients who cannot be discharged from compulsory treatment.

51. The Minister has now replied. Her letter, dated 23 December 2002, is published as an appendix to this Report. It seems to us to answer the questions satisfactorily. The Minister explains that the scheme is intended to be applied to mental health patients in due course. It is not intended to apply to compulsorily detained patients in respect of whom both social services and NHS authorities have responsibilities under section 117 of the Mental Health Act 1983, but the matter will be addressed in the Mental Health Bill to be introduced as soon as parliamentary time allows. In the light of the Minister's response, we are satisfied that the aspects of the Bill about which the Committee inquired do not give rise to a significant threat of a violation of human rights.

52. Since writing to the Minister, our Chair has received a letter from Mr. Paul Burstow MP, Liberal Democrat Shadow Minister for Older People, raising a number of additional human rights issues (similar to those noted by the Minister in the final paragraph of her letter as having been raised at Second Reading): the impact of the Bill on the patient's rights to life and to freedom from degrading treatment; the independence of the panel to be appointed under clause 6 of the Bill; the impact on the patient of the delayed discharge period; and the effect of the Bill on the rights of carers. Mr. Burstow's letter was reproduced as an appendix to our First Report.[41] We have considered these concerns.

53. Right to life and freedom from degrading treatment. Mr. Burstow suggested that the Bill contains inadequate safeguards against discharging people who are unfit, putting lives at risk or opening patients to degrading treatment. We accept that the Bill will put pressure on social services employees, when assessing patients's needs for community care services under clause 3(3), to minimise the services that it will say the patient will require. (Indeed, practical difficulties for social services employees abound, including for example the national shortage of occupational therapists, who alone are qualified to assess certain needs.) However, the NHS authority would remain responsible under section 6 of the Human Rights Act 1998 not to discharge a patient if it would threaten to put his or her life at risk contrary to ECHR Article 2 or to subject the patient to degrading treatment contrary to Article 3. That being so, we do not consider that the Bill, if properly implemented, would be responsible for threatening a violation of the right to life or the right to be free of degrading treatment.

54. Independence of the panel to be appointed under clause 6. Mr. Burstow suggested that the dispute resolution panel envisaged by clause 6 would need to comply with requirements of independence and impartiality, by reason of ECHR Article 6, and that the constitution of the panels should therefore be settled in primary legislation rather than being left to regulations (as clause 6(2) currently does). Mr. Burstow pointed out that a number of decisions of the European Court of Human Rights bring administrative tribunals within the scope of Article 6 requirements. However, Article 6 applies only where—

  • a body is determining a dispute (contestation in the French text), and

  • that determination is of a criminal charge or a civil right or obligation.

55. The panel envisaged by clause 6 would not have either of those characteristics. The panel would not determine disputes, but would only 'assist in the resolution of disputes'. It would appear to have only a facilitative role, helping the disputing authorities to reach an accommodation through mediation or conciliation, rather than imposing a conclusion by adjudication. By its very nature, Article 6 cannot apply to such panels. Furthermore, the matters in dispute (disagreements between public authorities about, for example, which of them should provide what services to whom) are neither criminal charges nor civil rights or obligations within the meaning of Article 6. For these reasons, we consider that it would be inappropriate for the panels to be subjected to Article 6 standards.

56. Delayed discharge period. Because a social services authority may be liable under clause 3 to make a delayed discharge payment in respect of a patient from the third day after a NHS authority has given a notice of intended discharge under clause 2, Mr. Burstow raised the possibility that a patient might have only three days to decide where to spend the rest of his or her life. However, the patient would not have to make a final decision within that period about where he or she would live permanently. The only question would be where the patient would go immediately after discharge, so that the social services authority could assess the patient's community care needs in that place. Longer-term issues could be considered later. While decisions about a person's place of residence undoubtedly engage the right to respect for the home under ECHR Article 8.1, it seems to us that patients can legitimately be expected to make short-term decisions reasonably quickly, as long as suitable choices are put before them, in order to protect the health and the rights of others who need hospital care. Insofar as there could be an interference with ECHR Article 8.1, it seems to us that the NHS authority and the social services authority would be required by ECHR Article 8.2 and the Human Rights Act 1998, section 6, to ensure that the interference is for one of those legitimate purposes, is a response to a pressing need, and is proportionate to it (particularly the need to free up hospital beds for other patients). As long as this is done, we consider that any interference with a patient's rights under ECHR Article 8.1 would be likely to be justifiable under ECHR Article 8.2.

57. Strain on carers. Mr. Burstow made two points. First, there is no provision in the Bill requiring consultation with carers (particularly family members) before people are discharged into their care. Secondly, carers might be charged for intermediate care provided to the patients in their care. Both these points could engage the right to respect for private and family life under ECHR Article 8. In practice, we accept that any attempt to force a carer to care for a patient, in the absence of a pre-existing duty such as the duty of a parent to care for his or her minor child, would on the face of it be so disproportionate an intrusion as to violate the Article 8 rights of both the carer and the patient, as well as those of other members of the carer's household. However, for that very reason it would be unlawful for either the NHS authority or the social services authority to do anything of the kind, by virtue of section 6 of the Human Rights Act 1998. If a carer agrees, voluntarily, to accept the responsibility for caring for someone on condition that appropriate community care services are provided to make that possible, it would seem to be wholly irrational for the social services authority or the NHS authority to charge for those services, unless the authority is offering alternative care (for example, in a nursing home) which the authority could provide substantially more cheaply. If the authority can provide the services substantially more cheaply elsewhere, but the carer wants to care for the patient at home, it would not seem to us to be necessarily disproportionate, for the purpose of ECHR Article 8, to charge the carer for the services, as long as the impact of the charge on the carer and other members of the carer's household is taken properly into account when deciding whether to charge, and, if so, how much to charge for the services.

58. For these reasons, while recognizing the importance of the issues raised in Mr. Burstow's letter, we have come to the conclusion that they do not disclose a substantial risk of incompatibility with Convention rights.

41   Joint Committee on Human Rights, First Report of 2002-03, Scrutiny of Bills: Progress Report, HL Paper 24, HC 191 Back

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