Joint Committee On Human Rights Eighteenth Report

4  Department of Health's leadership

Department's responsibility

97. Although the Department of Health does not have governmental responsibility for the Human Rights Act, it is a public authority with legal responsibilities including positive obligations under the Act. In addition, as a government department, it shares in the collective responsibility of ensuring that legislation is implemented effectively. As our inquiry has revealed, the provision of healthcare to older people raises significant human rights issues for health and social care services and it is necessary for the Department of Health to take human rights seriously.

Political leadership

98. We were impressed by the clear commitment to human rights made by Ivan Lewis MP, the Minister for care services, when he gave oral evidence to us in June. When asked about the importance of human rights principles to the provision of health services, the Minister was unequivocal:

99. In her foreword to the Department's publication Human Rights in Healthcare, published in partnership with the BIHR in March of this year, Rosie Winterton MP, Minister with responsibility for equalities in the Department of Health, said:

    Too often human rights are seen as an issue for other countries or a relic of the past century, and not something we need to be concerned with in health and social care. This is not the case. Quite simply we cannot help to improve people's health and well-being if we are not ensuring that their human rights are respected. Human rights are not just about avoiding getting it wrong, they are an opportunity to make real improvements to people's lives. Human rights can provide a practical way of making the common sense principles that we have as a society a reality.[178]

100. We welcome these clear ministerial statements about the importance of human rights to healthcare, but we note that they are very recent. We cannot resist observing that, for example, when Ivan Lewis MP launched the Department's Dignity in Care campaign in November 2006, he did not refer to "human rights" once in his speech. This may partly explain why so many witnesses told us that they were concerned about the lack of political leadership on human rights from the Department of Health.

101. Age Concern referred to "the government's lack of leadership in promoting a human rights culture" as one of the "structural weaknesses that contribute to human rights problems for older people in hospital and residential care settings."[179] Help the Aged gave a clear description of the problem as they saw it:

    I think there is a failure of leadership from the Department of Health and the managerial strands in local authorities and health bodies. It is very much about understanding that human rights is not just about background, but it contains a principle of positive obligations to ensure that you are securing rights for everyone within your field of practice and seeing it as being a proactive process rather than a reactive process. I think we are miles from that. It is a really important message for the Department of Health to start to promulgate.[180]

102. Discussing what is needed for the programme of capacity-building on human rights with NHS trusts, the BIHR told the Committee "we need high level support, we need to see the Department of Health, ministers at the highest level, setting out the relevance of human rights to healthcare and healthcare to human rights, we really need those high level messages."[181]

103. The call for political leadership did not come only from the NGO sector. The Royal College of Nursing said "I think there needs to be a real push in terms of leadership. We need strong political leadership [and] we need very strong policy leadership."[182]

104. The Healthcare Commission confirmed this too:

    In order for the Act to become an effective tool for regulatory bodies such as the Healthcare Commission to use, we believe that the following will also need to be in place […] Greater commitment from government to embed the principles contained in the Act in all aspects of public policy.[183]

105. Challenged about this in oral evidence, the Minister said:

    I think the leadership that is being provided in the department is absolutely brilliant. For the department to have produced [the Human Rights in Healthcare] document and to have begun to have the debate with primary care trusts and strategic health authorities about the importance of human rights I think it is doing quite well.[184]

106. In our view, the political leadership from Department of Health Ministers that has been shown in the last few months (at least since we announced our inquiry) is commendable. But the fact remains that it has come seven years after the Act came into force. The failure by the Department of Health to give a lead has meant that the Government's job has, of necessity, had to be done by voluntary organisations, often with few staff, no power and scarce resources. Inevitably it has been an uphill struggle to make an impact. The BIHR concluded their written evidence with the following remarks:

    […] from the highest societal level downwards, the odds are stacked against efforts to use human rights to improve healthcare for older people. The barriers [that BIHR identify] compound to form a pyramid of obstacles that renders isolated and exceptional those efforts by older people, staff and others to use human rights based approaches to improve the healthcare experience of older people. In other words, examples of human rights being used to improve healthcare practice remain the exception rather than the rule, since they are not supported by a broader societal commitment to human rights or an explicit emphasis on human rights in the healthcare system as a whole.[185]

107. We urge the Department of Health to maintain the clear political leadership that it has recently shown on the importance of human rights in health and social care. We recommend that in any constitution or statement of purpose which the Department of Health might draw up next year to celebrate sixty years of the NHS, a statement about the importance of human rights to the provision of health services should be included.

108. We are pleased that the Minister agreed with us that the priority is:

    […] to get over the fact that the Human Rights Act is not just about terrorists and criminals; it is also about ordinary people's rights in the way that they are dealt with by public bodies, and unless we start to talk positively about the rights of people who are in this circumstance disadvantaged as against the huge bureaucracy of the healthcare system and start to empower people by talking more positively about it, then we are not going to achieve that.[186]

109. In view of the attacks on the legislation and calls for its repeal or amendment (some of which have come from members of the Government) it is crucial that the Government speaks with one voice on the Human Rights Act. We therefore urge the Government as a whole to maintain consistent and constructive support for the Human Rights Act and its importance in contributing to the improvement of our public services and the empowerment of people using them.

Policy leadership

110. We are impressed by the fact that there are ministers and senior officials within the Department of Health who have recently come to understand the importance of human rights in healthcare. The references to human rights in the published policy documents which we have seen are good but we are concerned about whether human rights principles are actually having an impact on policy-making in practice.

111. For example, in the introduction to their further evidence to the Committee, the Department of Health make the following observation:

112. Following this promising opening, in the subsequent 20 pages of evidence, however, the Department only mention "human rights" again in two contexts: firstly a reference to the role of the Older People's Champions Network in ensuring that "older people are treated with respect for their dignity and human rights"[188] and secondly in four paragraphs about the partnership with the BIHR and 5 NHS trusts (described below) under the heading "A Human Rights Based Approach."[189]

113. It may seem trivial to count the references but it illustrates the problem well. In a total of 97 paragraphs of written evidence to a select committee inquiry into the human rights of older people in healthcare, the Department of Health refer to "human rights" in only six of them (although the word "dignity" fares rather better, being referred to in 12 paragraphs). The implication is that when discussing the substantive policy in the area of older people's human rights in healthcare, the Department has neither understood fully the Committee's inquiry nor has a proper understanding of its responsibilities under the Human Rights Act. There still seems to be a failure to recognise that the need to accord older people respect for their dignity is now underpinned by statute and therefore the HRA should be actively taken into account in policy development. This is despite what Lord Falconer, then Lord Chancellor, has explained as the impact that the legislation has on policy-making:

    [It enshrines] in British law, through a framework of fundamental rights, the notion that all human beings should be treated with respect, equality and fairness […] The Human Rights Act ensures that we look to our own back yard. It means that every piece of legislation complies with human rights legislation and all public services take human rights into account in the way they operate. Not after the event, or in a way that is burdensome - but as part of good business-planning, as an integral part of policy-making..[190]

114. None of the evidence that the Department of Health has provided to us during this inquiry gives us confidence that the Human Rights Act is in fact "an integral part of policy-making" within the Department. In our view, this can be achieved only by a department-wide strategy on implementation of the Act and, in particular, its role in underpinning the Department's work on dignity. This omission was highlighted by Action on Elder Abuse, who pointed out:

    Although ["A New Ambition for Old Age"] states Governmental ambition, "to ensure that older people and their families will have confidence that in all care settings, older people will be treated with respect for their dignity and their human rights", it provides no strategic plan to achieve this, and instead focuses upon 'dignity' without making the link to human rights.[191]

115. When we asked the Minister whether the Department of Health has a strategy for implementing the HRA he told us about the interim reporting process to the ad hoc inter-departmental meetings chaired by the Lord Chancellor and the recent publication of Human Rights in Healthcare. The former activity clearly provides some impetus for action within the Department and the self-described purpose of the latter is to assist NHS trusts. We consider this document in more detail below. We are also aware that the Department has recently published a guide for NHS managers on equality and human rights which states that "equality and human rights is core business for the NHS".[192]

116. In our opinion, the Guide could provide a better explanation of the purpose and implications of the HRA and anecdotal evidence suggests that it has not reached all the people who need it.[193] We are also aware that the Department has included "respect for human rights" in the core standards which providers of healthcare must comply with,[194] and we consider this in Chapter 6.

117. The Human Rights in Healthcare publication is the product of a joint venture pilot scheme between the Department of Health, the BIHR and five NHS trusts. Its purpose is to provide practical guidance on how to embed a human rights approach in the provision of healthcare services. Launched by the Department's equalities minister in March 2007, the publication states "neglecting people's human rights is bad for their health. In contrast, the protection and promotion of their human rights is not only good for individuals' health; it makes for better services for everyone."[195]

118. Most importantly, the publication goes beyond rhetoric. It gives detailed, comprehensive and practical guidance on how health providers should incorporate the HRA into planning and delivering services. It provides accessible information on the impact of the legislation and case studies from the five trusts participating in the pilot. In our view, it is one of the best pieces of practical guidance on the impact of the HRA on public services that we have seen. In the next Chapter, we highlight some case studies from this pilot. We believe that the framework document should be circulated widely and we were encouraged by the Minister's comments on what the Department intends to do with it in oral evidence to us:

    […] we only published Human Rights and Healthcare - A Framework for Local Action in March, so essentially the challenge is to make sure that in every locality this document is being debated, discussed and implemented, not just at chief executive and middle management level but also in terms of engaging with front-line staff. I do not believe that that will happen overnight. It will happen over a period of time.[196]

119. We hope, however, that this commitment to make the guidance widely available has not been watered down by what the Minister said in his subsequent letter to us "[…] the Department will investigate options for dissemination of the outputs from this pilot."[197]

120. Our concern is that, although the policy developments on human rights referred to above, of which the BIHR initiative is the most significant, are all laudable, they are piecemeal and in danger of lacking impact because what is still missing is a department-wide strategy which can incorporate these actions within it. Without such a strategy endorsed at the highest departmental level, it is all too easy for good pieces of work to end up having little or no impact in practice. We cannot fathom what the Department means when it says it needs to "investigate options for dissemination of the outputs" - why can it not confirm, in plain English, as the Minister did, admirably in oral evidence, that it will make sure the framework document reaches the largest number of people providing healthcare services?

121. There are other ways of making sure that human rights are embedded in health services. One of the people quoted by the NHS Confederation in their supplementary evidence made a suggestion to which we think the Department should give full consideration:

    […] if the Department of Health is serious about a rights based approach to healthcare there has to be more joined up thinking at a national level. For example, there is a requirement for all trusts to become Foundation Trusts but a human rights based approach to health care is not a requirement to gain FT status.[198]

122. We recommend that the Department of Health draw up and publish a strategy setting out how it intends to make the HRA integral to policy-making in health and social care across the whole department.

123. We also recommend that the Department of Health publish an evaluation of the pilot project undertaken by the BIHR and five NHS trusts on using a human rights approach in healthcare. Using its normal channels of communication, it should distribute copies of Human Rights in Healthcare - A Framework for Local Action to all NHS trusts.

124. The Department should then survey trusts within, say, a year to find out the extent to which trusts are incorporating a human rights approach in healthcare services. The Department of Health should also commit to providing sufficient funding to implement the emerging good practice more widely. This is likely to include capacity building for providers of health services as well as training of staff and provision of information to patients.

125. We now consider the evidence provided to us on the current state of implementation of the HRA among providers of healthcare services.

177   Q 374. Back

178   Department of Health and BIHR, Human Rights in Healthcare: A Framework for Local Action, March 2007, p 3. Back

179   Ev 124, para 2.1. Back

180   Q 81 [Ms Gould]. Back

181   Q 253. Back

182   Q 283. Back

183   Ev 147, para 3.3. Back

184   Q 391. Back

185   Ev 173, para 13. Back

186   Q 398. Back

187   Ev 106, para 1. Back

188   Ev 110, para 38. Back

189   Ev 112, paras 62-65. Back

190   Lord Falconer, Speech to Institute for Public Policy Research, 10 December 2004. Back

191   Ev 220. Back

192   Department of Health, Equality and Human Rights in the NHS: A Guide for NHS Boards, 2006, p 3. Back

193   Visit to hospitals and care homes in North London. Back

194   Department of Health, Standards for Better Health, 2004. Back

195   Human Rights in Healthcare, op cit, p 4. Back

196   Q 402. Back

197   Ev 121. Back

198   Ev 233. Back

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