Joint Committee On Human Rights Seventh Report


1.Memorandum from Age Concern England


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

  • Right to a fair hearing


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

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