Joint Committee On Human Rights Eighteenth Report

Conclusions and recommendations

Treatment of older people in hospitals and care homes

1.  In our view, elder abuse is a serious and severe human rights abuse which is perpetrated on vulnerable older people who often depend on their abusers to provide them with care. Not only is it a betrayal of trust, it would also, in certain circumstances, amount to a criminal offence. (Paragraph 20)

2.  We were pleased to hear the Minister's assurance that "nobody should be discharged from hospital without appropriate arrangements being put in place for their care" and his acknowledgement that the operation of the Regulations could have human rights implications. However, although Department of Health guidance sets out a number of principles which it suggests should be applied, including that discharge should be "planned for at the earliest opportunity across the primary, hospital and social care services", we are concerned that, for a number of reasons, this is simply not happening in practice. We are also concerned that the premature or inappropriate discharge of older people could lead to their readmission shortly afterwards. (Paragraph 38)

3.  We recommend the Government amend the Delayed Discharge Regulations to allow for flexibility in applying the time period so as to ensure that the Article 8 ECHR rights of older people are respected. We also recommend that the Government issue guidance for hospitals and local authorities on the application of the Regulations to ensure respect for the Article 8 rights of older people. (Paragraph 40)

4.  What became clear to us from the evidence is that an older person's age is much less likely to be directly taken into account when decisions are taken about his or her healthcare than in the past. However, age discrimination in both hospitals and care homes is now more subtle and indirect. (Paragraph 47)

5.  We consider that the power imbalance between service providers and service users and the strong evidence that we have received of historic and embedded ageism within healthcare for older people are important factors in the failure to respect and protect the human rights of older people. These problems require more than simply action at the local level, but an entire culture change in the way that healthcare services for older people are run, as well as strong leadership from the top. The Human Rights Act has an important role to play in moving the culture to one where the needs of the individual older person are at the heart of healthcare services. (Paragraph 59)

6.  We are convinced that the existing legislation does not sufficiently protect and promote the rights of older people in healthcare. We recommend that there should be a positive duty on providers of health and residential care to promote equality for older people. We also recommend that the current prohibition on age discrimination in the workplace be extended to the provision of goods, facilities and services, so as to encompass (amongst other activities) the provision of healthcare. (Paragraph 64)

7.  We therefore recommend that the CEHR monitors the implementation of human rights and equality legislation in healthcare for older people and reports on this in its State of the Nation report. (Paragraph 65)

Understanding how the Human Rights Act applies to older people in healthcare

8.  We were impressed by the commitment to a human rights approach in healthcare shown by everyone who provided evidence to us. We agree with the British Institute of Human Rights' comment that "the human rights of older people are particularly invisible in society". (Paragraph 67)

9.  In our view there is a significant distinction, with implications for users of services, between a "duty to provide" under care standards legislation and a "right to receive" under human rights legislation. We believe that when health and social care workers carry out their function to the best of their ability this should be both because they see it as their job and responsibility to provide certain levels of care and because they understand that the patient has a need, reinforced by the law, to be treated with respect for their dignity. (Paragraph 77)

10.  The HRA therefore empowers users of public services who are often in vulnerable circumstances and who would otherwise be powerless in the face of inherently unresponsive systems. (Paragraph 82)

11.  We recommend that the Government, other public bodies and voluntary organisations should publicly champion an understanding of how the recognition of human rights principles can underpin a transformation of health and social care services. This should lead to a greater understanding of human rights in civil society and more effective implementation of the Act within public authorities. (Paragraph 94)

12.  We also recommend that the Commission for Equality and Human Rights in fulfilment of its duty to "promote understanding of the importance of human rights" should ensure that such an understanding is widely disseminated. (Paragraph 95)

Department of Health's leadership

13.  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. (Paragraph 106)

14.  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. (Paragraph 107)

15.  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. (Paragraph 109)

16.  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. (Paragraph 110)

17.  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. (Paragraph 114)

18.  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? (Paragraph 120)

19.  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. (Paragraph 122)

20.  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. (Paragraph 123)

21.  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. (Paragraph 124)

Implementation of the Human Rights Act by providers of services

22.  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. (Paragraph 131)

23.  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. (Paragraph 137)

24.  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. (Paragraph 138)

25.  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. (Paragraph 139)

26.  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. (Paragraph 142)

27.  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. (Paragraph 151)

28.  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. (Paragraph 152)

29.  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. (Paragraph 153)

30.  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). (Paragraph 161)

Health and social care inspectorates and NICE

31.  Although the requirements in the healthcare standards to "respect human rights" and treat patients with "dignity and respect" are welcome, they lack specificity and we recommend that the Healthcare Commission provides guidance to NHS trusts on what is required of them to meet these standards in practice. (Paragraph 173)

32.  In order to avoid the unfortunate impression that the human rights of people in care homes are less important and less enforceable than the human rights of patients in hospitals, we recommend that, following the current review, the human rights of residents be more explicitly spelt out in the care home standards. (Paragraph 178)

33.  Because of the court decision which we noted in the previous Chapter that private care homes are not public authorities under the Human Rights Act, we recommend, as an interim measure before legislation is passed, that the care standards regulations be amended to require, as the health standards do, that care homes respect residents' human rights in accordance with the Human Rights Act. (Paragraph 179)

34.  We also recommend that when the health and social care inspectorates are merged, that the standards applicable to quality of care and other issues engaging the human rights of users of services should be the same for both NHS trusts and care homes. The unified standards should expressly require compliance with human rights standards by hospitals and care homes and state that patients and care home residents have the legal right to respect for and protection of their human rights. The newly established inspectorate should provide guidance to providers of services on the implications of such requirements. (Paragraph 180)

35.  In our opinion, the Healthcare Commission should not view the Human Rights Act as "one of a large number of sets of regulations" to which it is subject. Instead it should regard the framework created by the Act as over-arching and fundamental to all its work. We recommend that the Healthcare Commission ensures that the HRA is explicitly used in its regulatory work. We also recommend that the forthcoming merged inspectorate for health, social care and mental health adopt a human rights framework for all its work. (Paragraph 184)

36.  We recommend that the forthcoming merged inspectorate for health, social care and mental health adopts a human rights framework with the intention that the framework informs all of the inspectorate's work and so makes it more effective in fulfilling its statutory duties. (Paragraph 189)

37.  We recommend that the newly established health and social care inspectorate surveys providers of health and social care services and reports on their levels of understanding of and compliance with the Human Rights Act within three years of the new commission starting operations. (Paragraph 190)

38.  In particular, we are not convinced that NICE are fully taking human rights into account in their decision-making. (Paragraph 193)

39.  We recommend that the National Institute for Health and Clinical Excellence demonstrates in all relevant publications that, in its decisions on clinical practice, it has expressly taken into account the Convention rights of any patients who may be affected, as required by the Human Rights Act. (Paragraph 198)

The role of staff in protecting human rights

40.  In our view, human rights training should have been provided throughout hospitals and care homes and other public service organisations from 2000. We recommend that all staff working in healthcare (both clinical and non-clinical) receive targeted and regular training in human rights principles and positive duties and how they apply to their work. (Paragraph 222)

41.   We recommend that the Department of Health review, within three years, the extent to which training has taken place within healthcare and the effects of that training. We also recommend that the Department of Health produce guidance, building on its pilot with the BIHR, including case studies and examples as appropriate, of best practice in training different groups of healthcare staff on human rights principles as they apply to their day to day work. (Paragraph 223)

42.  We also recommend that the reports on individual healthcare providers by the newly merged health and social care inspectorate should include details of the human rights training that has been provided to staff. Further, we recommend that the Commission on Equality and Human Rights monitors the extent to which hospitals and care homes include human rights principles in their staff training. (Paragraph 224)

43.  We recommend that a basic understanding of how the Human Rights Act requires the protection of basic principles such as dignity, fairness, respect and equality be included in qualifications, accreditation and re-licensing for health professionals. (Paragraph 226)

44.  Whilst we do not want to increase the burdens on healthcare staff, we are conscious that they have a vital role to play in ensuring that all patients and residents with whom they come into contact are treated with dignity and respect and are not subjected to abuse. A duty to report suspected abuse is more than merely a moral duty and we consider that such a duty should be a requirement for all staff working in the NHS and in care homes. We therefore recommend that the Government include a requirement in both the Care Standards for Better Health and the National Minimum Standards for Care Homes for Older People (or, as we have already recommended, preferably in one set of integrated care standards) that hospitals and care homes should have a policy requiring all healthcare workers to report abuse or suspected abuse, with protection for whistle-blowing and confidentiality. (Paragraph 232)

Empowering older people

45.  We were alarmed and concerned by how little protection care home residents appear to have against eviction, as compared to ordinary tenants in rented accommodation who have the protection of housing legislation, and suggest that rectifying this anomaly be considered as a matter of urgency. (Paragraph 241)

46.  In our view, in order to ensure greater protection of an individual's human rights, an individual (or his or her relative or carer) must have a real and effective means of raising concerns with service providers and, if they are not able to deal satisfactorily with the issue, a third party to which he or she can address complaints. We deal with this in more detail below. Such mechanisms go to the very heart of ensuring that the human rights of patients and residents are respected in practice. (Paragraph 243)

47.  We conclude that older people, especially those who are the most vulnerable, would greatly benefit from the assistance of independent advocates in order to secure their human rights on the same basis as the rest of society. We welcome the Minister's support for independent advocates and recommend that he ensures that the Department provides sufficient independent advocacy services to older people, with particular priority being given to older people with mental health problems or who are unable to communicate in English. These advocates should have an understanding of human rights principles and the positive duties of service providers towards older people. (Paragraph 249)

48.  We welcome the Government's consultation on the merger of the inspectorates, although we are concerned that the consultation suggests that the new inspectorate will not handle individual complaints. We were alarmed that the Minister was unable to guarantee that the new inspectorate would be able to investigate individual complaints at the appropriate point in the process. We are convinced that complaints, including those raising human rights concerns, need to be investigated by an independent third party, rather than by the organisation against which the complaint is made and where the older person may continue to live. We therefore recommend that the newly merged inspectorate be empowered to investigate individual complaints, as the Healthcare Commission is currently able to do. (Paragraph 258)

49.  There is clearly some important promotional work which needs to be carried out to improve the image of human rights within the population generally, including older people. We commend the former Minister for Human Rights and the former Lord Chancellor for the steps that they have taken, as part of the Government's Common Values, Common Sense campaign. We urge the new members of the Government, in particular the new incumbents in the Ministry of Justice, to be steadfast in their support for the Human Rights Act and its real importance for many ordinary people, including older people receiving health and care services. (Paragraph 269)

50.  It is important that older people and their advocates or carers have sufficient information about their rights, to ensure that they can claim them from service providers if they wish to do so. However, this should be a matter of last resort. Given the power imbalance between older people and service providers, and their resulting reluctance to complain, we do not consider that it is either realistic or appropriate to expect older people to shoulder the burden for ensuring that service providers treat them with respect for their human rights. The primary responsibility for the protection of human rights, as we have repeatedly said in this Report, falls on providers of public services. We have already recommended in Chapters 4, 5 and 6 what the Department of Health, providers of healthcare services, inspectorates and other healthcare agencies should be doing to ensure that older people's human rights are protected in hospitals and care homes. (Paragraph 272)

51.  We consider that a dual approach is required: firstly, older people need information about their human rights; and secondly, institutions need to mainstream human rights within their work. We recommend that the Department of Health, the inspectorates, healthcare policy-makers and every provider of healthcare services make a public commitment to: (a) embed a human rights approach in hospitals and care homes across the country and (b) make sure that accessible information on human rights and how to use them are provided to patients, care home residents, relatives, carers and advocates, and the public as a whole. (Paragraph 276)

52.  In addition, we recommend that the Commission for Equality and Human Rights, in partnership with organisations representing older people, assesses the quality of the information available to older people, their families and carers on the application of human rights principles to their lives and makes sure that the best information is widely disseminated. Independent advocates and advisors have a crucial role to play in assisting people to understand and apply these concepts. (Paragraph 277)

53.  We recommend that information on human rights be presented by the NHS in an appropriate way to older people. (Paragraph 282)

54.  We recommend that information on the human rights of older people and the duties of service providers as "public authorities" under the HRA be provided to older people, in an accessible form, on entry to the care home or hospital. The applicable care standards for hospitals and care homes should be revised to require that service providers make specific reference to an individual's human rights and the avenue for making a complaint. (Paragraph 288)

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