Joint Committee On Human Rights Minutes of Evidence

Examination of Witnesses (Questions 380-399)


4 JUNE 2007

  Q380  Nia Griffith: You have mentioned a number of the problems there, and indeed witnesses have also mentioned cases of neglect and abuse to us. Do you think that one way of tackling this might be to have a statutory duty to report abuse? This is something that is done in Sweden. You mentioned the difficulty of older people perhaps not being able or not wanting to say things themselves, so, for example, if someone were to see something going on they would have a statutory duty to report that that was going on, the staff themselves would have to do that.

  Mr Lewis: This is one area where I am not sure. Every professional who works in health and, as we register the social care workforce, in social care will have professional standards that are non-negotiable, and part of those professional standards, as well as the guidance that will operate in any care setting in any part of the country, will be that if somebody is being abused you have a responsibility as part of your professional code of practice, as part of the policies that apply in your workplace, to report that. This is one example, referring to the Earl of Onslow's comments about whether I believe that legislation in this area would enhance what is already there, where I am not sure.

  Q381  Nia Griffith: But you did say at the beginning that you feel there is always a statutory minimum.

  Mr Lewis: In some circumstances.

  Q382  Nia Griffith: People will say, "Look: I have got to do that today even if I do not do other things". If there was a statutory obligation do you think that would make any difference?

  Mr Lewis: Would you not regard that as a minimum, basic, day one priority if you see somebody being abused, the responsibility, the obligation to report that? If that is not part of your professional practice I am not sure why you are there.

  Q383  Nia Griffith: I think it can be very difficult when there are hierarchies and when there are junior members of staff and senior members of staff and often quite small units where people do not want to make a fuss or put somebody else on the spot. Perhaps if there was somebody they could write to they would feel more confident about it.

  Mr Lewis: As I understand it there is a part of the Act which is to do with the ability of people to do that. Is it related to whistle-blowing?

  Q384  Chairman: That is part of the story, is it not? That provides the shield behind which you can do it but it does not provide the obligation to do it. Part of the problem is this. It is not just in hospitals; it is also in care homes where you have got carers in private care homes, often working for very poor wages for very demanding employers who expect a lot from them, and the difficulty is this, that if you are worried that you are going to get the sack for reporting somebody then you are not going to do it, but if you have a statutory obligation to do it you can say, "I have got no choice. I have to do this because the law says so", and therefore you feel stronger and less likely to be victimised or persecuted for basically grassing somebody up.

  Mr Lewis: In terms of social care, for which in terms of people working in residential and nursing homes this would be relevant, we have recently gone through a process of registering social workers. We are moving on to domiciliary care staff and we are moving ultimately to people working in residential and nursing care settings, and as part of that registration they have to meet certain professional standards, including reporting abuse, so we are on a journey in that respect in terms of those who work in residential and nursing homes. I am not sure that the Chairman's fears would be allayed as a consequence of having a law which said, "I am inhibited from reporting that person because that person has more power than I have and is more senior than I am. I do not want to lose my job", so that is the motivation as to why the person would feel inhibited from reporting. Would an Act of Parliament change that?

  Q385  Nia Griffith: If you look at the smoking ban in Wales, it does make a difference, because where you have something which says you cannot it is much easier for people to respect that and therefore not abuse it, and in a way it is the same sort of thing. If it is known that it is a duty to report then it is there, it is something that you can call upon. I think it does make a difference having a statutory responsibility.

  Mr Lewis: That is fine. As I said at the beginning, in all these circumstances you are going to make that judgment, are you not? That is the whole basis on which we sit in Parliament and have to make decisions. There are massive philosophical and ideological as well as case-by-case issues, and the Chairman has spent many a Friday having these debates about where legislation is appropriate, where regulation is appropriate, where voluntary codes of conduct are appropriate and where simply you need it because there is pressure coming from society, from individual citizens. We make those judgments every day of the week, do we not? If you are asking me to make a judgment about this in isolation from the bigger picture I would say that my job as a minister is to look at the whole. I am not saying I would rule it out for ever. I am just saying I am not persuaded as of today as I appear before this Committee that it would be right to legislate on this issue.

  Q386  Nia Griffith: Do you think another way of looking at the issue might be to tackle the problem of ageism, which is something that we have across again and again, and would there be a case then for having some form of anti-discrimination law so that old people would have the same sort of comeback, the same sorts of rights as other protected groups?

  Mr Lewis: I am going to rely on my memory of my briefing. I think the Equality Act, which is being worked on, is going to be looking at, in a way that it has not done before, the whole question of age. Age has been excluded before, so that will hopefully answer some of your questions. Do I believe that age discrimination in our society is a problem? Yes. Do I believe it affects people outside of the workplace because current legislation is very much focused on your rights as an employer or prospective employer? I do. Do I think that this becomes a much more significant question for legislators and public policy makers going forward? It inevitably does because people are going to continue living longer and longer and that therefore requires society to look at age discrimination in a far more serious way than they have done hitherto.

  Q387  Mark Tami: How do you view your department's responsibilities for the protection of those using health and social care users' human rights under the Human Rights Act?

  Mr Lewis: As I understand it, there are two groups of people where we have problems at the moment. One is where people are publicly funded but living in private provision or receiving services through private provision, and the other is where people are self-funders and receiving services in those circumstances. There was a recent court ruling, which we thought was quite unhelpful and which the Chairman is addressing to some extent on that whole question, so I think we have clear gaps in terms of protection for people who are receiving their provision through private providers and also for people who are self-funders. An increasing number of people who use social care are self-funders, so there are in my view unintended loopholes which we need to seriously address.

  Q388  Mark Tami: So you see it as a loophole rather than within your responsibility?

  Mr Lewis: When the law was crafted I think we all assumed that if you were a public body that had a commissioning relationship or a contract with a private provider common sense and law would cover you in terms of existing legislation. There was a recent ruling which said no, actually that was a false analysis, which meant that either the legislation was not addressing it appropriately or—

  Q389  Chairman: So do I take it the Government will be supporting my Private Member's Bill in a couple of weeks' time?

  Mr Lewis: That is a matter for other parts of Government to determine. Particularly at this stage of the political cycle it would not be a good career move for me to start second-guessing other ministers' portfolios. Mark, are you trying to get me somewhere else? Have I answered your question?

  Q390  Mark Tami: I think that is fair. It is just really to look at where you see that responsibility beginning and ending, I suppose.

  Mr Lewis: The reality in social care is that about 75-80% of provision is already in the independent sector. We know that in terms of social care and in terms of access and eligibility to services and eligibility criteria a growing number of people essentially are funding their own care because they do not meet the threshold for publicly funded care. In those circumstances there is a significant and growing proportion of the population who are unintentionally not covered by this Act. Whether the Chairman's draft legislation, which he is drafting personally, will address that is for others to judge, but it is not acceptable because it was not an intended consequence, I believe, of the Government or of legislators to leave those people out of the system.

  Q391  Mark Tami: Some other witnesses have told us that they believe there is a lack of political leadership within the department on the whole importance of human rights in healthcare. Do you think that is fair, and if it is what would you say about that and what would you do about that?

  Mr Lewis: As one of my colleagues is the leader in this respect I think the leadership that is being provided in the department is absolutely brilliant. For the department to have produced this 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.

  Mark Tami: It is an issue that other witnesses have raised.

  Q392  Chairman: For the record, "this document" is?

  Mr Lewis: It is Human Rights in Healthcare—A Framework for Local Action. It was published in March of this year, so it is relatively recent. It is part of a genuinely significant programme of not just publishing a document but constantly having discussions, if you like, with those who are charged with running the system at a local level on the fact that human rights are now crucial and that the law has major implications for commissioners and providers of services, so no, I think the political leadership has been good. Do we have a long way to go? Of course we have a long way to go, in the same way that we have a long way to go towards understanding the consequences of the Human Rights Act across our society.

  Q393  Earl of Onslow: There is a point which you made earlier on which I would like you to clarify and which arises out of Mark's question. You said that 70% of people go to private homes. What percentage of that 70% is paid for by public money? Probably quite a lot. If public money is involved is it not possible simply to put into the contract which the local authority gives to that public provider, "We undertake to be bound by the terms of the Human Rights Act", end of discussion?

  Mr Lewis: I think we assumed that that was in many ways the case.

  Q394  Chairman: But the problem with it is that in law that was not directly enforceable between the individual and the provider. It is the privity of contract issue. It is a legal point, which is one of the great lacunas that we have got in the arrangements.

  Mr Lewis: Can I just clarify what I said? What I tried to say was that I think in most areas, and it does vary, about 70-75% of social care provision is either provided by the private sector or by the voluntary sector. I want to be absolutely clear that that is what I said.

  Earl of Onslow: But this is a public authority point which the Lords is going to talk about, that a state care home is bound by the Human Rights Act but BUPA is not. My Chairman tells me that this cannot be the case and it would seem to me that if the state is paying even half of old people's care they can say, "You will act". It appears to be a legal point.

  Chairman: This is not something for now but the short point is that you cannot direct the policy because you are not part of the contract. The other problem is that the contracts are so vague that they say that they should comply with the Human Rights Act without actually saying what that means. That is basically what the problem is.

  Q395  Mark Tami: In your introduction to the further evidence you gave to the Committee you stated that respect for human rights was central to a modern healthcare and social system. However, in 97 paragraphs I think "human rights" only gets six mentions and when you launched Dignity in Care last November I do not think human rights was mentioned at all. Do you think there is an issue with the term "human rights", that the Government does not like using it, and do you think this could undermine how we view the Human Rights Act?

  Mr Lewis: I think it goes back to the argument about the rights vis-a"-vis best practice and I think it is very new for us to be considering these issues from a rights point of view. For example, if you look at the disability agenda, which is as relevant to my portfolio in some ways as older people with regard to social care, there has been tremendous energy around the rights of disabled people over the last few years that was never there before. I do not think there has been the same focus and energy around the rights of older people, particularly in relation to care services, so I think you are right to say that we have a long way to go. In no way would I want to appear before this Committee today and give you any sense of smugness or complacency. I think we probably are inclined to present this as about being a reform of public services, about excellence and best practice, when in fact we should use the rights statements more explicitly. I do not think in this area it is about caution from the Government's point of view. I think it is just a cultural change at every level, including governmental.

  Q396  Mark Tami: You mentioned earlier in a different context the Daily Mail. Do you think there is an issue that using the term "human rights" is seen as something that is played upon by the media?

  Mr Lewis: Of course. Human rights is hijacked, is it not? It is the source of all evils in our society, the Human Rights Act. Anything that is not ideologically right-wing is as a consequence of the Human Rights Act, so no. Often what happens is that when ridiculous decisions appear to be made that belie common sense, people say that is because of the Human Rights Act and various ministers have had to come out very stridently in recent times, from memory, and say, "It is nothing to do with the Human Rights Act". The Human Rights Act is being used as a shield to justify a barking decision. In this area I genuinely do not think that, because if you think about society and how people would feel about the Government talking about the rights of older people, I think most people in society would go, "Yes, absolutely".

  Q397  Mark Tami: So why are we not promoting it more?

  Mr Lewis: As I say, I think we have made significant progress in a relatively short period of time. I just think that we have a long way to go. Undoubtedly it is difficult. The role of leadership in any government department, and I suppose I try and provide leadership in social care; that is my responsibility, is to give leadership in the sense of what is excellence, what is best practice, how do we want to see services reformed and moved forward, and I suppose we ought to stress alongside the best practice argument the rights realities. It is about the law, is it not, and I do not think we stress that enough? Hands up.

  Q398  Chairman: That is basically the point, is it not? Best practice and the rights of patients are two sides of the same coin but they are different sides. Best practice is what you are training people to do but rights are what underpin it and allow patients to say, "It is my right to be treated this way". The two should be significant but the problem is, going back to the debate about the Human Rights Act, that the impression you get is that the Government is frightened of advocating the Human Rights Act for fear of the Daily Mail, or whatever other right-wing newspaper we may be talking about, and part of the job of this Committee 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. That is my little lecture over.

  Mr Lewis: Agreed.

  Earl of Onslow: What you are saying is that they should behave like that. They do not and you need the Act to make sure that they do.

  Chairman: Exactly.

  Q399  Baroness Stern: You have put a lot of things very well and I appreciate that and I am going to try and tie you down in probably a more boring and detailed way if you do not mind. We have had the Human Rights Act now for seven years. Does the Department of Health have a strategy, something that we could read and hold in our hands, for implementing the Human Rights Act centrally and regionally? If so, where is it published and, if not, why not?

  Mr Lewis: To be boring in my answer, we report to the ad hoc ministerial committee that is chaired by Lord Falconer specifically on this issue and there are three elements to it. One is how we are going to embed human rights in the training and induction programmes for staff across health and social care, and we are currently having a look at that. There is the question of the human rights and healthcare framework document which I referred to. It covers several areas: the business case for human rights, what are human rights, why they are relevant in health and what the Human Rights Act means for NHS organisations; secondly, the practical actions that organisations can take in order to implement the human rights based approach, and we have first case studies from pilot organisations involved in the project which have developed and tested some of the practical actions in the framework, so there are some organisations which in terms of their policies and practices take the human rights approach, and I will give you a couple of examples: at Suffolk Health and Social Care a human rights based approach to the commissioning and delivery of fertility services specifically; at Birmingham Teaching Primary Care Trust defining an action plan for an organisation-wide implementation of a human rights based culture and way of working. The other issue is legal advice. We need to make sure that NHS and social care organisations have access to legal advice and we are also looking at making sure that NHS organisations have legal advice to a high standard, so there is quite a lot happening but it is about enshrining this in the culture of organisations at a local level that is really going to matter.

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