Examination of Witnesses (Questions 380-399)|
LEWIS MP, MR
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
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
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
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
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
Mr Lewis: It is Human Rights
in HealthcareA 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,
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
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.
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.