2.Letter from the Chairman to Jacqui Smith
MP, Minister of State,
Department of Health
COMMUNITY
CARE
(DELAYED
DISCHARGES
ETC.)
BILL
As you know, the Committee reported on aspects of
the human rights implications of the Bill in its Third Report
of 200l-02. Since then, a letter from Age Concern has raised further
concerns. The Committee is considering whether to report further
on the Bill in the light of that. It would be grateful for your
answers to the following questions.
Clause 2(2) of the Bill would impose an absolute
duty on the responsible NHS body to give notice of a qualifying
patient's case to the social services authority for the area in
which the patient is ordinarily resident. Although the form and
contents of the notice has not yet been prescribed (see clause
2(4)), it is likely to contain confidential information about
the patient's medical condition. Passing such information between
authorities engages the right of the patient to respect for private
life under ECHR Article 8.1. The European Court of Human Rights
has recognized that personal health records and related information
is particularly sensitive, and requires special protection under
Article 8. However, the duty under clause 2(2) of the Bill is
not limited to cases in which the patient consents to notice being
given, and does not exclude cases in which the patient wants to
discharge himself or herself from hospital without social services
involvement or has indicated that he or she would refuse assistance
from social services were it to be offered.
Where a notice has been given and has not ceased
to have effect, clause 3(3)(a) of the Bill would impose an absolute
duty on the social services authority to carry out an assessment
of the patient's needs, even if the patient objects or has indicated
that he or she would refuse assistance from social services were
it to be offered. Assessing the patient's needs sometimes necessitates
interviewing the patient and any potential carer about personal
matters, and visiting the patient's home. These steps would engage
the right of the patient and of the carer and/or cohabitant to
respect for private life and the home, and in some cases would
also engage the right to respect for family life, under ECHR Article
8.1. There is no exception under the Bill for cases in which the
patient or a cohabitant refuses to allow a social worker to enter
his or her home, or refuses to be interviewed, or wants to be
discharged and to go home and is prepared to waive any liability
on the part of the NHS body and the social services authority.
An interference with a right under ECHR Article 8.1
might be justifiable under Article 8.2 if it could be shown to
be in accordance with the law and necessary in a democratic society
for one if the purposes listed in Article 8.2. The Bill would
be likely to provide a sufficient legal basis to allow the interference
to be regarded as being in accordance with the law. In many cases,
the purpose of the interference would be to protect the rights
of the patient, particularly the right to life and the right be
free of degrading treatment which might be threatened as a result
of being discharged into an unsafe environment. However, it is
not clear that the Bill as currently drafted would ensure that
the performance of the duties under clauses 2 and 3 would be 'necessary
in a democratic society' for that purpose. As you know, a measure
is 'necessary in a democratic society', within the meaning of
Article 8, only if there is a pressing social need for it in order
to pursue one of the legitimate aims under Article 8.2, and the
interference with the right is proportionate to the legitimate
object pursued. To be proportionate, it must be possible to say
that other less invasive methods are unlikely to be successful,
the nature and extent of the interference must not be excessive
having regard to the legitimate object pursued, and the measure
must not deprive the patient of the essence of the right under
Article 8.1.
Clauses 2 and 3 do not allow the NHS body or the
social services authority to take account of the patient's wishes
when deciding whether to give notice under clause 2(2) or take
the steps necessary to conduct an assessment for the purposes
of clause 3(3). In particular, it could lead to an attempt to
force a patient, who wants to go home and has sufficient independence
of mind to want to avoid social services involvement in his or
her affairs, to undergo assessment and/or to receive assistance.
The Committee would therefore be grateful for
your response to the following questions
Why does the Government consider that this provision
would be likely to be a proportionate response to a pressing social
need to advance a legitimate aim within the meaning of the term
'necessary in a democratic society' in ECHR Article 8.2?
Whether in your view it would be possible to amend
clauses 2 and 3 to avoid any risk of a violation of ECHR Article
8, by preventing NHS bodies and social services authorities being
placed under a duty to give notifications and conduct assessments
against the will of the patients who are the subjects of the notifications
and assessments, particularly in cases where the patient is keen
to discharge himself or herself?
The Committee would be grateful for a response by
25 February.
12 February 2003
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