Community Care (Delayed Discharges
etc.) Bill
3. The Bill would require a social services authority
to assess a patient if an NHS body has notified the social services
authority that a hospital patient receiving treatment of a type
to be prescribed by regulations cannot be discharged safely unless
community care facilities were provided. If, following an assessment,
it is established that the patient would need particular community
care facilities and cannot safely be discharged without those
facilities being available, but the social services authority
fails to provide those services, the social services authority
would have to make a 'delayed discharge payment' to the NHS body.
4. We originally reported that we did not consider
that the Bill gave rise to a significant risk of incompatibility
with Convention rights.[1]
Subsequently a letter from Age Concern raised a number of issues
about the Bill.[2] Some
of these had already been considered, but one, relating to the
effect on the patient's freedom to refuse assessment or the provision
of facilities and to insist on being discharged, raised a new
question in relation to ECHR Article 8. Our Chair accordingly
wrote to the Minister of State at the Department of Health, Jacqui
Smith M.P., asking for the Government's view of the suggestion
that—
- the duty of NHS bodies under clause 2 to notify
social services authorities of qualifying patients, without the
patients' consent; and
- the duty of social services authorities to conduct
an assessment of patients' needs, even if they are unwilling to
accept assistance and only want to discharge themselves,
might be incompatible with the rights of the patients
to respect for their private life under ECHR Article 8.[3]
5. In her reply, by letter dated 24 February 2003,
the Minister made a number of points.[4]
- The Government is considering an amendment to
clause 2 of the Bill to make explicit the need for the NHS body
to consult patients and, where appropriate, carers before notifying
a social services authority.
- Patients and their carers will continue to have
the right to decide whether or not to participate in an assessment,
and to refuse either NHS treatment or social services assistance.
- If a patient does not need social services assistance
(for example, because he or she has plans to obtain any necessary
support from other sources), clause 2 would not permit the NHS
body to notify the social services authority. Clause 2 applies
only where the NHS body has some reason to think that the patient
could not be safely discharged without assistance from community
care services.
- Draft regulations, to be made under clause 3(8)
to govern the giving of notice under clause 2, have been published
for consultation. (The draft regulations are attached to the Minister's
letter.) These are said to make it clear that the notice would
not contain any confidential or sensitive personal information,
or any information about the patient's medical condition. (In
fact, we note that the draft only specifies the information which
is to be included in the notice; it does not expressly provide
that no other information may be included: see draft regulation
4(3).)
- In some circumstances, the Bill would protect
the rights of patients under ECHR Articles 2 (right to life) and
3 (right to be free of inhuman or degrading treatment). It would
avoid a situation in which a patient might be discharged into
life-threatening conditions because pride or embarrassment cause
him or her to refuse support. Articles 2 and 3 impose positive
obligations on public authorities, and the Bill would require
NHS bodies and social services authorities to take those obligations
seriously.
- The patient and any carer are under no obligation
to co-operate with an assessment, or to admit social workers to
their homes. If they do not co-operate, the social services authority
will be likely to conclude that only minimal community care facilities
are necessary.
- The patient, if mentally competent, would also
be free to refuse any services that might be offered. The State
would have no duty to force safety measures on a competent adult
who wishes to discharge himself or herself, even if it is likely
to result in the patient's death. This is the effect of the patient's
right to autonomy of decision-making both at common law and under
Articles 2 and 8 of the ECHR.[5]
6. For these reasons, the Government considers that
the Bill does not engage rights under ECHR Article 8.1.
7. We do not agree that the Bill does not engage
rights under Article 8.1. It seems to us that Article 8.1 is engaged
whenever a public authority undertakes in inquiry into, or interferes
with, a person's private life.
8. However, the factors set out above are highly
relevant to a different question: is any interference with Article
8.1 justified under Article 8.2? In relation to the question of
justification, the Government relies both on the factors listed
above, and on a further assessment as to the pressing social need
for, and proportionality of, any interference with the right under
Article 8.1. In this connection, the Government suggests that—
- any interference with Article 8.1 rights is likely
to be relatively minimal, compared to the difficulties which would
be caused if a patient were given a right to refuse to consent
to a notice being given under clause 2 or an assessment being
made under clause 3;
- measures to alleviate delayed discharges from
hospitals are important, because delays are detrimental to the
patients themselves, increasing the risk of hospital infection
and loss of independence. Delays are also detrimental to the efficient
running of the health service.
9. The Government therefore argues that the measures
can be justified as necessary for the protection of health and,
to a certain extent, the economic well-being of the country under
ECHR Article 8.2.[6]
10. We accept—
- that the measures are calculated to advance a
legitimate aim for the purposes of Article 8.2, namely the protection
of the health of people who are denied beds in hospitals because
of delayed discharge of existing patients;
- that there is a pressing social need to address
the problem; and
- that arranging for timely assessment of the needs
of certain hospital patients, and for those needs to be met through
community care, could contribute to reducing the problem.
11. We are less convinced that the measures proposed
can be relied on to achieve the result in the way that interferes
as little as possible with the rights of patients and carers to
respect for private life. In relation to the disclosure of personal
information, the Government's response fails to recognize that,
whatever information is contained in the notice by the NHS body
to the social services authority, the assessment by the social
services authority will inevitably depend, in part at least, on
information about the patient's medical condition. Without that,
it will be impossible to assess the risks to the patient's safety
and the patient's resultant needs. If the patient refuses to co-operate
with the social services authority, the authority seems to us
to be more rather than less likely to seek the information it
needs from the NHS body. There will be a natural temptation for
the NHS body to provide the information in order to increase the
chance of being able to discharge the patient safely. This could
lead to circumstances in which the disclosure is made without
the patient's consent in circumstances requiring special justification
if it is to be proportionate, so as to be justifiable under ECHR
Article 8.2. It needs to be borne in mind that disclosing medical
information about a person for any reason always requires particularly
strong justification if it is to satisfy the test of proportionality
under ECHR Article 8.2, because of the special sensitivity of
such information.[7]
12. If a patient refuses to co-operate with an assessment
and wants to take the risk of going home without an assessment,
the hospital could not lawfully stop the patient discharging himself
or herself. On the other hand, if the patient does not want to
leave the hospital, perhaps because he or she has become institutionalized
(which can take only a short time, especially when a patient is
physically dependent), the patient's refusal to co-operate could
effectively prevent the hospital from ever discharging the patient,
bearing in mind the hospital's duty of care towards the patient
at common law and under ECHR Articles 2 (the right to life) and
3 (the right to be free of inhuman or degrading treatment).
13. We accept that in some circumstances this might
justify a hospital in making the disclosure to a social services
authority without the patient's consent, if appropriate procedures
were established in the hospital for assessing the need for the
disclosure in the circumstances of each case. However, the absence
of an appropriate procedure for deciding whether or not to disclose
sensitive personal information may lead to the disclosure being
regarded as unjustifiable under ECHR Article 8.2.[8]
We note that the Bill does not provide for any particular procedure
to be followed within a hospital to ensure that various competing
rights and interests are properly balanced, as required by ECHR
Article 8.2, before the NHS body makes a disclosure without the
patient's consent. Administering such a procedure might be the
responsibility of the data protection officer appointed by the
NHS body for the purposes of the Data Protection Act 1998.
14. Accordingly, we recommend that the Bill should
be amended to include on the face of the Bill a requirement for
NHS bodies to adopt an appropriate procedure for balancing the
rights and interests affected, as required by ECHR Article 8.2.
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