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
Respect for human rights is central to a modern
] health and social care system. Not just because
it is a legal duty, but because no system can call itself humane
that does not respect and promote the human rights of the people
who use the service as well as the staff who provide them.
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"
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."
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..
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.
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".
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
are also aware that the Department has included "respect
for human rights" in the core standards which providers of
healthcare must comply with,
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."
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.
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."
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
] 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.
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.