Joint Committee On Human Rights Minutes of Evidence

Examination of Witnesses (Questions 400-419)


4 JUNE 2007

  Q400  Baroness Stern: I get the impression from what you have said that this is fairly recent. Is that right?

  Mr Lewis: The activity has been, let us say, stepped up in recent times.

  Q401  Baroness Stern: It did not start seven years ago?

  Mr Lewis: Not that I am aware of, if I am frank.

  Q402  Baroness Stern: Last December your department published a guide for NHS managers on equality and human rights which declared, and this is good, "Equality and human rights is core business for the NHS". We recently visited a hospital in north London where we were told that human rights are peripheral to mainstream business, largely because of a lack of guidance from your department. Do you have plans, concrete, specific, laid-out plans, to try and move this agenda from the periphery into the mainstream that you could tell us about?

  Mr Lewis: I have tried to say that 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. It would disturb me if an organisation were to describe it as peripheral in terms of their approach. I do not who said that. There was no attribution, whether it was the chief executive or somebody senior. I am not clear who made that comment.

  Q403  Chairman: I think it was the general view of the professions we met that it was seen very much as a tick-box exercise on the lawyers' side. Although they were very committed to providing the core standard, the good practice side of it, it was not because of the Human Rights Act or anything like that, and I think the issue really came home not so much at the hospital but at the community hospital we visited afterwards where a patient we met had been discharged to that and treated with care there, and where one of the issues it particularly raised was the treatment of that elderly patient in the discharge lounge by non-clinical staff. The focus has been very much on the clinical staff and far less on non-clinical staff who can simply not accept or understand the continuing need to treat patients in a non-clinical way properly in accordance with their human rights.

  Mr Lewis: You said there has been no guidance from our department but you yourself quoted the guidance that we have issued and I have produced this document today.

  Q404  Baroness Stern: No, I did not say that.

  Mr Lewis: Not you said, but a person said, which is a source to consider. Just to quote from Rosie Winterton's foreword to this document, "Too often human rights are seen as an issue for other countries or a relic of the past century, not anything we need be concerned with in health and social care. This is not the case. Quite simply, we cannot help to improve people's health and wellbeing if we are not ensuring their human rights or respect. Human rights are not just about avoiding getting it wrong. They are an opportunity to make real improvements to people's lives. Human rights can provide a practical way of making the common-sense principles that we have as a society a reality."

  Q405  Baroness Stern: Documents are lovely things to have and lovely documents are lovely things to have, but I would be really interested to hear you say something about the plan, if there is a plan, for turning the document into changes in behaviour in the discharge lounge in this hospital and in the old people's home somewhere else.

  Mr Lewis: What we have at the moment is a pilot running with the British Institute of Human Rights. It is operating in five trusts. To try and say to you today that we have got robust evaluation evidence from these pilots which will then help us to inform policy—I have to say that we have not got that yet. We are hoping to use this partnership pilot to inform where we need to go next; that is the truth. The reason we have introduced the pilot is to try and learn lessons as to how we can make this mainstream and how we can move it from the margins.

  Q406  Baroness Stern: Are you happy that so far your department has really done its best to implement the Human Rights Act?

  Mr Lewis: Standard one of the NSF for Older People absolutely makes it clear that rooting out age discrimination in the way that the NHS behaves has to be one of its top priorities. I think if you look at the history of the NHS and the way it has treated older people we have a pretty patchy record. Do I believe that since the NSF was developed and all of the work that has happened as a consequence of that there has been real progress? I do not want to bore the Committee but I could probably point to a whole series of very tangible outcomes which are about older people's human rights that have occurred as a result of the NSF. Yes, I think we have made significant progress. Can I just say that I am conscious of the limitations of documents and national frameworks. You have to use those as a lever, a tool, to change behaviour at a local level. We all know that the whole challenge for government is the gap between rhetoric and reality, the gap between the finest intentions of legislation, of resources, of policy and the reality in terms of people's experiences in the real world and on the ground. I also believe that this is not just about the state; I think it is also about the awareness and the confidence of citizens and communities to assert their rights. I think that is why the Government increasingly understands that reforming public services is not just about changing structures; it is also about empowering those people who use services and, more broadly than that, communities and society.

  Q407  Baroness Stern: What do you think of the idea of a positive statutory duty on health and social care organisations to respect the rights of the people they are helping under the Human Rights Act?

  Mr Lewis: Would it add value? Would it make a difference?

  Q408  Baroness Stern: I am asking you that. You are the witness.

  Mr Lewis: I do not know. The difficulty I have with this is that we have the NSF, we have this document and we have got this specific work we are doing trying to put dignity and respect at the heart of care services. I think there comes a point when you have to reflect on all of that and decide how many advances you have made, how much progress you have made and whether there is a requirement for any further legislation. I would say the jury is out.

  Q409  Baroness Stern: Finally, you did mention the British Institute of Human Rights pilot with the five NHS trusts which is now over. What factors are you looking at in evaluating that when deciding whether to roll it out nationally?

  Mr Lewis: As far as I know it is continuing; it is not completed. What factors will we look at? I think the factors we need to look at are: what are the ingredients that have begun to change the culture in those organisations to have a far greater rights-based approach than they have had historically? What are the ingredients? What are the characteristics? What were the change agents? Once you have identified what they are then you can clearly seek to mainstream those within every organisation because for me it is also about strengthening the belief that healthcare and social care need to be provided very differently than they have been provided historically in terms of the relative power of professionals vis-a"-vis patients and users of services.

  Q410  Chairman: When will the pilots be completed?

  Mr Sharma: I do not think there is a timescale in terms of completion because it is ongoing work. I think it is the learning that we can pick up from the pilots in terms of what that means for other organisations.

  Q411  Chairman: But you must have an idea. If you pay the BIHR you must have a contract with them for how long they are going to do it for.

  Mr Sharma: But the pilots that we commissioned were with the British Institute and now we are continuing that work ourselves with those areas.

  Q412  Chairman: But there must come a time when you say, "Okay, that is the pilot. Evaluate it, roll it out". Otherwise it just becomes an excuse for not doing anything else.

  Mr Lewis: Yes; we cannot have perpetual pilots, although we tend to. I think the answer is at present is that we do not know when they will be complete today. We will write to you with that information.

  Q413  Chairman: Otherwise you set up an automatic pilot. It just keeps going. One point I was going to come back to was when I talked about non-clinical staff, because it has been about clinical staff more than anything else, whether in care homes or in hospitals. Will this evaluation look at non-clinical staff, for example, reception arrangements, booking appointments, which are particularly serious for elderly people trying to do it by phone? I do not want to see or hear of the sort of complaint we had of an old lady sitting in her night clothes in the discharge lounge for four or five hours with her underwear in a plastic bag in her lap, no food, no tea, no nothing, and completely ignored by the staff.

  Mr Lewis: Why?

  Q414  Chairman: Because they did not know any better.

  Mr Lewis: How can I defend that?

  Q415  Chairman: Exactly. The point I am making is, will these pilots be looking much beyond what the focus has always been, which is how people are treated on the wards, and into the wider aspect of the hospital service?

  Mr Lewis: I suppose I can point you at Birmingham Teaching Primary Care Trust who are looking across their organisation, so it is very much across their organisation as a whole. Mersey Care NHS Trust are looking at all of their learning disability services. Tees, Esk and Wear Valleys NHS Trust are looking at the whole approach to care planning. There should be some evidence emerging from these pilots which are about organisational issues, not just about clinical issues. In terms of the story about that lady, there has to be a real question mark back: is that anything to do with human rights legislation or is that about basic minimum standards?

  Q416  Chairman: The point is that that was raised with me by the daughter-in-law in the human rights context, "My mother-in-law has got her human rights and they are being infringed in the way she was treated", which is absolutely right in my view. The point was that if people were more aware of what their rights were they could say, "Look: this is not how people should be treated". Yes, it is below the basic care standards, but the point is that this is not in a clinical context and most of the effort we have been looking at, most of the information we have had, have been about the clinical context, not that non-clinical context, and I think that is potentially the killer in all the work that has been done.

  Mr Lewis: I am certainly not going to get involved in mothers-in-law. No: the point you make is obviously a valid point. It is in every part of the pathway in terms of a patient or a user's experience of the service and the way that they are treated.

  Q417  Earl of Onslow: But surely in that case the person was not doing their job properly? That is simply bad officering, if somebody leaves a patient like that. Whether they are a clerk, whether they are a bootshine boy, whatever they are, they should not do that.

  Mr Lewis: I am not sure how many bootshine boys are operating now.

  Earl of Onslow: I was using that as an example.

  Q418  Chairman: I do not know if there are any human rights about shining shoes.

  Mr Lewis: The response to your question, and I think the Chairman was suggesting this, is to do with the source of redress. Is your redress through the grievance or complaints procedure or is it to say, "You have broken the law"? There is a significant difference between the two, is there not? The bit that is different is the way that you seek redress.

  Q419  Earl of Onslow: It is the other side of the coin.

  Mr Lewis: I will be very clear, just in case the Daily Mail is listening to this, that if that happened I would hope that the way we would resolve this would be for the relative or the patient or both to complain to the relevant manager who could resolve it within the organisation. I certainly personally—and this is where I think there are issues about the Human Rights Act—do not want to see an explosion of litigation in areas where litigation is not desirable.

  Chairman: You will never achieve human rights through suing people, generally speaking I would agree with that, but the point is that we can use it as a lever now. It will be too late for that old lady but hopefully, through filing this complaint, which I am doing, we will then see improvements so it does not happen to anybody else.

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