Joint Committee On Human Rights Eighteenth Report


5  Implementation of the Human Rights Act by providers of services

126. In Chapter 2 we set out a catalogue of instances of poor treatment of older people in hospitals and care homes, all of which affect their human rights and some of which may constitute unlawful violations. What is remarkable in our view is that it is the providers of medical, nursing and residential care services, who may be said to share collective responsibility for these problems, who are being so forthright in acknowledging them. We also believe that it is worth commenting that all of the witnesses who gave evidence to our inquiry took it as a given that the HRA and a human rights approach have a significant role to play in helping to prevent ill-treatment occurring and in improving the provision of healthcare services to older people. We do, however, accept that the witnesses were largely a self-selecting group and we bear in mind that not all healthcare providers share the witnesses' level of understanding about the Act. One of the issues explored in our inquiry has been the extent to which the HRA has in fact been implemented by public authorities providing health and residential care services.[199]

127. In its survey of 175 public bodies to assess compliance with the HRA in 2003, the Audit Commission found that:

    […] 58 per cent of public bodies surveyed still have not adopted a strategy for human rights. In many local authorities the Act has not left the desks of the lawyers. In health, 73 per cent of trusts are not taking action. Health bodies consistently lag behind other public services. […] we found that 44 per cent of public bodies have stalled. This was as high as 60 per cent in the health sector.[200]

128. The Minister told us that the Department of Health did not formally respond to this report because it was seen to be directed towards individual public bodies.[201] We have already commented on how important it is for the Department itself to show leadership. Without leadership, there may be pockets of activity but the overall picture will be one of inactivity. Shortly after the Audit Commission published its report, our predecessors reported in the following terms:

    No evidence has been found to indicate that human rights are being treated as a core activity in health organisations [and] given the scale of the NHS change agenda and the many competing demands on the time of busy NHS executives, implementing the HRA carries a very low priority in most health organisations.[202]

129. Our inquiry has taken place four years after these assessments and, bar some notable exceptions to which we refer below, things do not appear to have changed very much. The BIHR told us "we have got quite low awareness about what human rights really are and that is something we see across inspectorates and across public authorities."[203] Age Concern did not "think we have seen a great change or a great understanding of what the Human Rights Act means and how it might be applied, apart from specifically looking at how to avoid falling foul of the law which has been the lens through which it has been viewed."[204]

130. It appears that service providers are not opposed to the legislation; it is just that they do not know what the implications are. As Action on Elder Abuse put it in relation to residential care "[…] care providers are not inherently opposed to the Human Rights Act whether they are a public provider or not a public provider […] there is a lack of understanding within the sector about what that means."[205]

131. Comments made to us by most, but not all, of the providers of health and care services whom we met on our visit to hospitals and care homes in North London confirmed these assessments of lack of knowledge and application of the Human Rights Act. We regret the failure of both the Department of Health and the Ministry of Justice to provide proper leadership and guidance to providers of health and residential care services on the implications of the Human Rights Act since it came into force.

132. The challenges that this omission have presented are summarised by the BIHR:

—  Low emphasis within Government on the abuse of older people's human rights in healthcare is reflected in the healthcare sector itself.

—  Low institutional commitment among healthcare providers to contributing to [a] culture [of respect for human rights] meaning that human rights are not reflected in institutional policies and procedures;

—  Low awareness among healthcare staff of their duties to promote, protect and fulfil human rights;

—  A perception among staff that it is too costly to promote human rights.[206]

133. Witnesses had no doubt about what needed to be done to address these deficiencies. The Royal College of Nursing told us "[…] we need senior members of the healthcare professions to demonstrate that human rights is a very important issue that must be adhered to and promoted."[207]

134. A good example of senior members of the profession demonstrating the importance of human rights is the British Geriatrics Society' campaign on privacy in toilet use. The Society launched its campaign entitled Behind Closed Doors: Using the Toilet in Private at Westminster in April 2007. It sets out what might be regarded as the obvious standards to be adhered to by all professionals caring for older people whether in hospitals or care homes. An accompanying leaflet, by way of listed examples, explicitly distinguishes between "best practice which upholds human rights and promotes dignity" and "poor practice which violates human rights and denies dignity". The leaflet also states that "all health care professionals and workers have a legal duty to protect patients' Human Rights (Human Rights Act 1998)."[208]

135. This connection between the provision of healthcare and human rights needs to be made more frequently and more publicly. Leadership is one part of it. Institutional change also needs to occur. The Healthcare Commission said:

    We believe that this question of the culture in a hospital is absolutely crucial and it does require leadership from the top of the organisation. It then also requires systematic back-up to ensure that there is training, information and the right emphasis on it and it requires, by the trust and by us, vigilance in relation to key outcomes.[209]

136. We are grateful to the NHS Confederation for carrying out interviews with individuals working at the NHS Trusts participating in the training and development pilot sponsored by the Department of Health and undertaken by the BIHR. In their evidence, the NHS Confederation told us what some of the NHS trusts involved in the project have been doing about incorporating a human rights approach and what the experience has been within their own organisations. These case studies illuminate both what is meant by a human rights approach and what is required to implement it. We quote from them quite extensively because we believe that they demonstrate these points so clearly.
    Case study 1 - Mersey Care NHS Trust

    The Trust was formed in 2001 and decided […] that service users (patients) and carers [should] have the right to be involved in decisions which affect their lives. The upholding of human rights is now one of the 7 strategic objectives of the Trust and there is Board level leadership.

    People have traditionally had things done to them rather than being actively involved. Now that service users and carers are involved […], they say it makes a difference for them, they feel valued, they have interesting things to do, some have gone on to employment. Users and carers […] also say that involvement makes a difference to staff attitudes, clinical practice, and the kinds of services provided.
    Case study 2 - Surrey & Borders Partnership NHS Trust

    When the Trust was established in 2005, a board level decision was made to embed human rights into the organisation. The success to date is largely down to the leadership and governance support and the accountability that brings. The Trust has produced a 5-year equality and human rights strategy for 2007-2012 […] The plan links to the overall strategic direction and objectives of the Trust.

    The Trust has made a deliberate attempt to move away from a singleton approach i.e. either looking at race or gender or sexuality one at a time. The human rights approach is attractive as it is inclusive and covers everyone […]

    However there are barriers. This is new territory and can easily be perceived as being a piece of legislation to comply with - a tick-box exercise. For senior people it can be perceived as a soft area without hard core financial or business purpose so the communication of its benefits must be prioritised. There isn't any promotion across the NHS on human rights and healthcare and a strong national campaign would be a good starting point. The business benefits need to be articulated.

    When asked if the human rights approach will make a difference for patients, [the interviewee] said that the starting point is what difference it will make to staff. It will make them better practitioners and drive what they are there to do - deliver better wellbeing, more respect and dignity […] The impact is that the patient gets better more quickly; they will be less anxious, less tense and develop more trust in the staff. The risk of litigation is also reduced.
    Case study 3 - Heart of Birmingham Teaching PCT

    The prioritisation of human rights across commissioning and service delivery has been led from the top […] with strong support from the Chair, Chief Executive and Directors.

    The initial stages included the definition of a statement of human rights principles, an assessment of requirements for including human rights in service contracts and the definition of performance indicators to measure the progress and impact of the project.

    However a number of issues were identified by the Trust such as low awareness of human rights amongst staff; a lack of human rights knowledge; the need to embed human rights within the working culture of the trust; the need to explicitly highlight human rights issues in areas where the necessary action is already taken; the need to look at patients as humans first and foremost and the degree to which patient consent is informed.

    The biggest barrier […] is probably telling staff yet again that there is a new approach - something else that they have to take into consideration. They hope to convince staff that this is a moral issue and get them onside through training and demonstrating the positive impact through evaluation from patients. Internal communications will be incredibly important in order to avoid the tick-in-the-box approach.[210]

137. These three case studies provide encouraging examples of the difference that a human rights approach can make to organisational culture and quite evidently to the quality of service provision for users. We feel that these provide evidence of the kind of institutional respect for human rights for which we have been calling. The question is how to spread this good practice to other healthcare providers. Will it happen through the actions of the Department of Health and other health care leaders or does it need more support? As we discussed in the previous Chapter, we are concerned about activity that is piecemeal, may be regarded as optional and so risks being shunted into the sidings because of other departmental or organisational priorities. We recommend that the Department of Health and representatives of health and social care bodies provide guidance to hospitals and care homes on implementing a human rights approach in the planning and delivery of public services. Such guidance should emphasise that implementation should not be exclusively legalistic and should avoid being merely a tick-box exercise.

138. Clearly, there is an important role here for the Commission for Equality and Human Rights.[211] We recommend that the Commission for Equality and Human Rights ensures that public authorities, particularly in health and social care services, are receiving the right kind of guidance to enable them to implement the Human Rights Act effectively.

139. We are concerned, however, by the implication from these case studies that embedding human rights is merely an exercise in best practice rather than a requirement underpinned by statute. Do public bodies, including the Department of Health, fully appreciate the extent of their legal duties under the Human Rights Act?

Responsibilities of public authorities under the Human Rights Act

140. Section 6 of the HRA requires public authorities to act compatibly with Convention rights. Under Section 6, public authorities also have positive obligations which may require them to take positive steps to safeguard fundamental human rights.

141. In the seven years since the Act came into force, it appears to us that the Government has not properly understood this duty itself and so has not provided sufficient explanation about what it entails to others. The consequence of lack of information about what positive obligation means has been, inevitably, a lack of understanding or implementation of it within public authorities. The sense that the Act is only about minimal compliance has prevailed. We welcome, however, the fact that in recent months, the Government has started to address this deficiency. For example, in a speech earlier this year, Lord Falconer said "[…] the Human Rights Act places a positive obligation on public authorities to consider human rights implications when they are developing policy."[212]

142. We remain unconvinced that public authorities are alert to the significance of ministerial language. The Government needs to do much more to explain in a clearer way what the positive obligation doctrine means. We have received written evidence from 12 organisations which, for the purposes of the Human Rights Act, are either public authorities providing public services or are representatives of such public authorities.[213] In the submissions of only three of them, the Healthcare Commission, CSCI and the Association of Directors of Social Services (ADASS) (and therefore not the Department of Health), are the positive obligations of public bodies referred to. The Healthcare Commission quite correctly, in our view, states:

    In line with other public authorities, the Healthcare Commission has a 'positive obligation' to respect and protect human rights. As argued in Age Concern's Report Rights for Real, human rights embody a requirement that people be treated with fairness, respect, equality, and dignity and the concept of dignity is key to achieving meaningful equality for older people.[214]

143. The ADASS also demonstrate an understanding of the obligation by their reference to "the duty on public agencies under the Human Rights Act (1998) to intervene proportionately to protect the rights of citizens".[215]

144. We conclude that Age Concern and Help the Aged are probably right in telling us that there is "limited understanding" about positive obligations and that therefore they are "poorly understood and rarely implemented".[216]

145. In our view, the doctrine of positive obligations under the HRA is fundamental to the implementation of a human rights approach within public authorities. This is clearly what the Government intended when the Act was passed. We agree with Age Concern's analysis:

    Given the potential of a human rights approach in helping to raise service standards, we believe that public bodies should welcome the opportunity of taking positive steps to safeguard older people's human rights […] We would argue that an understanding of positive obligations is central to the creation of a genuine human rights culture.[217]

Positive duty to respect human rights

146. The Audit Commission's conclusion in 2003 still seems to hold true today:

147. In its Report on the structure, functions and powers of the Commission for Equality and Human Rights, our predecessors recommended a positive statutory duty on public authorities to promote human rights in the following terms:

    We were clear in our report last year [2003] that there is a need for greater focus by public authorities on their positive obligations to protect human rights. We are now persuaded by the evidence that imposing a "positive" or "general" duty on public authorities to promote human rights will be an effective way of advancing this […] Requiring public authorities to assess all of their functions and policies for relevance to human rights and equality, and in the light of that assessment to draw up a strategy for placing human rights and equality at the heart of policy making, decision making and service delivery, would be an effective way of achieving the mainstreaming of human rights and equality.[219]

148. In February this year, the Equalities Review issued its final report on the causes of persistent discrimination and inequality in British society recommending the following:

    A strong, integrated public sector duty covering all equality groups, with a focus on outcomes and not process, should enable better policy design as well as better service delivery. Government and Parliament should seize the opportunity presented by the [Discrimination Law Review] to simplify and focus a new integrated duty on the outcomes it is intended to achieve […][220]

149. In June, the Department for Communities and Local Government published a consultation based on the work of the Discrimination Law Review.[221] The Green Paper sets out what the Government wants to achieve with a positive equality duty:

    By helping public authorities to embed equality considerations throughout their activities, public sector equality duties support the design and delivery of personalised and responsive public services.

    The duties are intended to help bring about a culture change so that promoting equality becomes part and parcel of public authorities core business.[222]

150. These ambitions remind us very much of what another department of Government, the Ministry of Justice and its predecessors, have consistently been saying that it wants to achieve with the Human Rights Act. In 2001, Lord Irvine, then Lord Chancellor, explained it in the following way to our predecessors:

    What I mean and I am sure what others mean when they talk of a culture of respect for human rights is to create a society in which our public institutions are habitually, automatically responsive to human rights considerations in relation to every procedure they follow, in relation to every practice they follow, in relation to every decision they take, in relation to every piece of legislation they sponsor.[223]

151. We recognise that the concept of positive obligations is inherent in the ECHR and the Human Rights Act. We also recognise that there is inadequate awareness and implementation of those duties. In our opinion, measures reinforcing the positive obligations doctrine under the ECHR would kick-start the institutional changes that are needed within public authorities. Unless an obligation encapsulating these positive requirements is provided for, we are not confident that public authorities will implement them. It was the Minister who told us in relation to the HRA itself "[…] if you simply exhorted and talked of best practice without legislative underpinning then inevitably public bodies would find ways not to completely implement their obligations, so an element of legislation is, I think, really important."[224]

152. While recognising that there are problems of legal certainty, we recommend that the Government take the opportunity presented by its commitment to pass single equality legislation in this Parliament to make explicit that public authorities are under a positive duty to take active steps to protect and respect human rights where the Convention imposes a positive obligation to do so.

153. We recommend that the Commission for Equality and Human Rights makes sure that public authorities are fully aware of their positive obligations under human rights law and we anticipate that it will actively participate in debates about including "respect for human rights" in the proposed single equality duty.

The problem with private care homes

154. The implementation of the HRA which we have explored in this Chapter has been confined to "public authorities" as defined under Section 6 of the Act. These include private bodies when providing public functions but, as recent case law has clarified, do not include care homes which are run by private companies or voluntary organisations. In our recent Report on this subject, we expressed concern about "this gap in human rights protection for the most vulnerable people" and called on the Government to take action.[225]

155. Our current inquiry into the human rights of older people in hospitals and care homes has thrown into sharp relief the human rights problems experienced by older people in residential care and reinforced our concern about the lacuna in the law. We have found that the same kinds of ill-treatment of older people happen whether they are in hospitals, local authority care homes or private ones. We are left with the unacceptable anomaly of comparable and worrying problems affecting the same group of vulnerable people but under different legal regimes. A large number of older people are affected. In its evidence, CSCI told us that there are 10,671 residential care services providing approximately 358,000 places though not all of them will be occupied at the same time.[226] CSCI also informed us that "in total 77.9% of homes for older people were in the independent sector, with 13% of homes in the voluntary sector" and that "one-third of [users] fund their own care".[227]

156. We are also aware of findings that demonstrate that care in the private sector is not necessarily the best. The national minimum standards apply to all care homes, whether in the private, voluntary or public sector but, as research undertaken by CSCI reveals, compliance with these standards differs between these sectors. As CSCI report:

    Care homes for older people run by the voluntary sector have continued to outperform homes in the for-profit and public sectors. On average, in March 2006, homes in the voluntary sector met 85% of all the standards compared to 81% and 78% of the standards met by council and not-for-profit providers respectively.[228]

157. In CSCI's view, a change in the law to bring private and voluntary providers of residential care within the HRA would not kill the market.[229] CSCI told us:

    Personally, I do not believe that to be the case because the good providers will want to provide a service which delivers all the qualities that the Human Rights Act offers anyway, and it would be a very poor provider in the current climate that would want to do less than that when starting up their business. Personally, I do not think that would be borne out in practice and I think the best would want to do that.[230]

158. CSCI repeated their earlier stated view that all care homes should be subject to the Human Rights Act.[231]

159. Since our most recent Report on the meaning of public authority and since the evidence sessions in this current inquiry were completed, the House of Lords has delivered its judgment in the case of YL (by her litigation friend the Official Solicitor) v Birmingham City Council and others.[232] By a majority of 3 to 2 their Lordships have confirmed that the provision of residential care by a private provider, even where paid for out of public funds, is a private law matter and therefore outside the scope of the Human Rights Act. This was, in our opinion, a very disappointing decision. We agree with the minority view, broadly for the reasons given in their speeches.[233]

160. We therefore welcome the commitment to take action made by Baroness Ashton, then Minister for human rights, in response to a parliamentary question answered on 27 June 2007:

    The question is how to enshrine in care home operations the Human Rights Act in an appropriate manner to make sure that people in care are treated with respect and dignity […] it is possible that we can do it by amendments to regulations very speedily. I am looking both at a short-term solution, which this may well provide, and at a longer-term solution, for which I am sure I shall have the benefit of the expertise of noble Lords on human rights as well as that of people involved with care homes directly.

    This is about making sure that, where elderly people are cared for, they have the backdrop of the Human Rights Act to make sure that they are treated properly and certainly with respect.[234]

161. As we discuss in the next Chapter, the care home regulations are currently being reviewed and there is scope for including human rights requirements. Our present inquiry has highlighted the inequities for vulnerable residents of care homes where those care homes (and this is 93% of all care homes) are outside the Human Rights Act. We urge the Government to fulfil the welcome commitments it has recently made in Parliament to take action to bring private and voluntary care homes within the scope of the Human Rights Act as soon as possible by regulation in the short-term and by amendment to primary legislation in the longer term. However, we note that, this will not resolve the broader problem of the provision of public services by private providers (as referred to in our recent Report).

162. We now turn to consider the regulatory regime governing hospitals and care homes.


199   We consider the position of private providers at the end of this chapter. Back

200   Audit Commission, Human rights: improving service delivery, 2003, paras 12 & 29. Back

201   Ev 122. Back

202   Appendices to the Sixth Report of Session 2002-03, The Case for a Human Rights Commission, HL Paper 67-II/HC 489-II Vol 2, paras 2.1 & 7.1. Back

203   Q 263. Back

204   Q 80. Back

205   Q 237. Back

206   Ev 171-172, paras 8-10. Back

207   Q 283. Back

208   British Geriatrics Society, Behind Closed Doors: Using the Toilet in Private, 2007. Back

209   Q 123. Back

210   Ev 232-235. Back

211   Under the Equality Act 2006, Section 9(1), the CEHR is required to "encourage good practice in relation to human rights" and section 13(1) grants the CEHR power to provide education and training and to give advice or guidance. Back

212   Lord Falconer, Harry Street lecture, 9 February 2007. Back

213   British Geriatrics Society, Herefordshire Older People's Champions Group, Faculty of Old Age Psychiatry of the Royal College of Psychiatrists, Department of Health, Healthcare Commission, Royal College of Physicians of Edinburgh, British Psychological Society, Commission for Social Care Inspection, Royal College of Nursing, National Institute for Health and Clinical Excellence, Association of Directors of Adult Social Services, NHS Confederation. Back

214   Ev 145, para 2.15. Back

215   Ev 223. Back

216   Ev 127, para 3.3; Ev 169, para 8.2. Back

217   Ev 124 & 127, para 1.4 & 3.3. Back

218   Human rights: improving service delivery, op cit, para 9. Back

219   Eleventh Report of Session 2003-04, Commission for Equality and Human Rights: Structure, Functions and Powers, HL Paper 78/HC 536, para 32. Back

220   Equalities Review, Fairness and Freedom: The Final Report of the Equalities Review, February 2007, pp 113-114. Back

221   Discrimination Law Review, A Framework for Fairness, op citBack

222   Ibid, paras 5.2-5.3. Back

223   Lord Irvine, evidence to Joint Committee on Human Rights, Minutes of Evidence, 19 March 2001, Q 38. Back

224   Q 377. Back

225   Press Notice No. 24, 28 March 2007. See also Ninth Report of Session 2006-07, The Meaning of Public Authority under the Human Rights Act, HL Paper 7/HC 410. Back

226   Qs 144 & 145. Back

227   Ev 177. Back

228   State of Social Care in England 2005-2006, op cit, paras 5.15 & 5.16. Back

229   Q 172. The Government has previously told us that including private providers within the meaning of "public authority" would have an effect on a range of markets (Thirty-Second Report of Session 2005-06, The Human Rights Act: The DCA and Home Office Reviews, HC 278/HL 1716, Q41 [Lord Chancellor]; Nineteenth Report of Session 2006-07, Counter-Terrorism Policy and Human Rights: 28 days, intercept and post-charge questioning, HL 157/HC 394, Q 251 [Attorney General]). Back

230   Q 172. Back

231   Qs 168 & 170. Back

232   [2007] 3 WLR 112. Back

233   Lord Bingham of Cornhill (paras 1-20) and Baroness Hale of Richmond (paras 36-75). Back

234   HL Deb, 27 June 2007, cols 598-599. Back


 
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