APPENDICES TO THE REPORT
1.Memorandum from Age Concern England
COMMUNITY
CARE
(DELAYED
DISCHARGES
ETC)
BILL
I write to you in your capacity as Chair of the Joint
Committee on Human Rights. I understand that the Committee has
recently completed an assessment of the Community Care (Delayed
Discharges etc) Bill.
Age Concern has a number of concerns about the effects
of the Bill on older people and potential breaches of the Human
Rights Act. We appreciate the stage that the Committee has reached—however,
we thought it important to register that in our view there may
be breaches in relation to the following:
- Consent of the patient (and/or cater)
- Partial nature of assessment required by the
Bill
Consent
The Bill as it stands does not address the issue
of consent of the patient at all stages in the hospital discharge
process. We have concerns that this may mean the Bill is in breach
of Article 8 of the Convention on Human Rights. We also have concerns
that the Bill does not ensure that where a patient lacks mental
capacity, their best interests will be taken into account.
The NHS should work within strict rules of confidentiality
and we believe that, just because a person has entered hospital,
it does not mean that they should automatically be referred to
social services for an assessment. In order to respect the patient's
private and family life, we believe that patients' consent should
be obtained before confidential information about them is sent
from one part of the system (the NHS) to another (social services).
Similarly to comply with the Human Rights Act a patient should
have the right to refuse an assessment by social services and
patients should be consulted on any proposed care plan. Given
that in some cases the care plan may include a recommendation
that the patient requires residential care (a life changing decision
which can impact greatly on private and family life) it is essential
that the patient has been consulted and agrees to the proposed
plan.
The partial nature of the assessment
As it stands we are concerned that the Bill's requirement
of only a partial assessment may also breach Article 8 rights.
For example, Clause 3(3) of the Bill specifies that the assessment
need only be with a view to identifying services that are necessary
for a 'safe discharge' and clause 3(9) states that the assessment
is treated as done under section 47. This means that patients
can be discharged before a complete assessment of their needs
has been carried out. A short assessment for 'safe discharge'
might lead to patients being inappropriately placed in care homes,
when their choice would have been to return home. The Bill stipulates
that the care plan for safe discharge must be finalised within
three days, prior to the penalties starting to bite, so there
is likely to be great pressure on the patients and their family
at an already stressful time. We are concerned that the stigma
attached to delayed discharge and local people's possible knowledge
that their council faces fines if patients remain in hospital
could put older people under pressure to comply with the care
plan. Similarly families may feel compelled to provide care at
home for their older relatives. It gives them little time to find
an appropriate care home and to investigate all the other options
that may be available.
We have concerns that in order to avoid the penalties
proposed by the Bill, a local authority may place a person in
a home not of their choice and subsequently they might have to
move again. Given the increased health risks of moving older people
we would like the committee to consider whether the Bill might
also be in breach of Article 2 and 3, for example because the
older person s treatment or impact on their health would amount
to degrading treatment.
The right to a fair hearing
Finally, we are concerned that the Bill might be
in breach of Article 6(i) which provides for the right to a fair
hearing. In its clauses on dispute resolution, the Bill only deals
with disputes between the health and social services authorities
and not between the patient and the health service or the local
authority. Although there are some forms of redress (via a panel
if patients disagree that they should be discharged) there is
nothing in statute, only in guidance (HSC 2001/15). The panel
does not appear to be independent as it will be formed by the
Strategic Health Authority. Additionally the NHS body can decide
not to convene the panel and the panel's decision is not binding
on the NHS body. We would like the committee to assess whether,
in order to comply with Article 6(i) rights, the Bill will need
to include provision for dispute resolution for patients (and
carers) who do not agree with the decision process.
We hope that the Committee finds the above comments
of use and might be able to consider whether there are potential
breaches of the Human Rights Act in the areas we refer to.
29 January 2003
| 
