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One problem that I believe exists cannot be dealt with in the Bill, but it helps to emphasise the need for human rights to be embodied in the Bill. Staff in these homes often simply do not understand what human rights are. The reality is that in many private homes—as I say, I am not in that profession, but many here will know exactly what I am talking about—staff are on minimum wages at the bottom end of the wage market. They are often people who can find employment in very few areas other than in care, yet we presume that somehow, instinctively, they will want to flag up human rights issues in the way that they handle a client group. I do not believe that they necessarily do. Some of those on minimum wages are very good carers, but some, from what I hear, are appalling, and they remain in those institutions. Unless someone complains, which we talked about before, very little happens.

If we can embody in the Bill this human rights issue in a way whereby service providers cannot avoid it as a consideration, the responsibility will then be placed on them to ensure that those who they employ, at the very bottom end of the wages market, are well aware of their responsibilities.

Baroness Barker: At this hour, I do not want to prolong the discussion; much has already been said. I have two points, which to some extent flesh out the comments by Members of the Committee about why the Minister’s response to the JCHR was inadequate.

First, I notice that, with the exception of the noble Baroness, Lady Stern, everyone talked about social care. Actually, I am quite interested in what human

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rights look like in an A&E department. There is an approach to trauma medicine that can be conducted with due regard to human rights. I am not sure that that is the first thing that goes through practitioners’ minds, but it is still important. That flags up why this is important. We cannot talk about other rights in relation to healthcare or social care; we cannot talk about equality, for example. We cannot talk about non-discrimination. A large part of the practice of medicine is exactly about judgment and discrimination; what is appropriate and right for one group of patients, and one patient as opposed to another.

I suppose that it is precisely because we cannot talk about other rights as we know them and overcoming other forms of discrimination, because they do not logically apply, that, particularly in social care, people have come to have such an acute understanding of how the principles of human rights apply in a situation where individuals do not have entitlement and in which there are not infinite resources. There is much to do before people from the world of social care truly understand what the implementation of human rights means in an acute healthcare setting, and vice versa. That is why it is important to place this in the Bill and not to rely on the general public authority duty, which the Minister might be tempted to use as a recourse. We have only just begun to address the full implications of what this means. For the foreseeable life of this legislation, to have it in statute will be a necessary reminder, both to practitioners and users, of the basis of all their practice. That is why it has particular importance.

Baroness Masham of Ilton: As I said earlier, there is a big difference between “may” and “shall”. I wholly agree with what the noble Baroness, Lady Stern, said about being vulnerable while being dependent on other people. This time, I hope that the Minister will explain why he cannot accept “shall”, if he cannot accept it. I hope that he will accept it. All vulnerable people should be protected; that is so important. There is bullying in some of these hospitals and homes, and above all else that should be stamped out.

Lord Darzi of Denham: This group of amendments has been tabled by the noble Baroness, Lady Stern, on behalf of the Joint Committee on Human Rights.

Human rights issues were debated in depth in the other place, and the debate focused mainly on the public authority definition. However, I recognise that the Joint Committee has indicated that it was not fully convinced by some of the arguments that the Government put forward in relation to other amendments. I hope that I shall be able to explain the Government’s position more clearly today.

Through this Bill, we are seeking to establish a unified framework for the regulation of health and adult social care services. It will create a level playing field for all registered providers across both the private and public sectors, but not all such providers will count as public bodies for the purposes of the Human Rights Act. That, fundamentally, is at the heart of why the registration requirements should lay down specific requirements that give effect to human

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rights, rather than seeking to extend the effect of the Human Rights Act to purely private arrangements, where it was never intended to apply.

7.15 pm

Dealing with each of the amendments proposed by the Joint Committee on Human Rights in turn, Amendments Nos. 23 and 28 seek to give the commission a general duty to promote human rights. Amendment No. 23 would require it to encourage services to be provided in a way that focuses on the rights as well as the needs of the people using those services, and Amendment No. 28 proposes a general requirement that the protection and promotion of human rights should be central to the commission’s work.

We have already included a requirement in Clause 2 for the commission to have regard to the need to safeguard and promote the rights and welfare of children and vulnerable adults in everything it does. We adopted that wording because it is important for the commission to pay particular attention to the needs of those who are less able to advocate for themselves. However, I also recognise the strength of feeling that the commission should take proper account of the rights of all people who use health and social care services. I have already undertaken to look again at the drafting in Clause 2 and will look at this issue as I do so. That would be the most appropriate way to reflect the intention behind Amendments Nos. 23 and 28, and I hope to come back to this on Report.

The remaining amendments propose changes to specific functions the commission will have to ensure that human rights issues are covered. Amendments Nos. 41 and 42 seek to ensure that regulations under Clause 16 will include requirements for securing the rights of people using health and social care services, as well as their health, safety and welfare. Amendment No. 76 proposes that respect for the rights of people using health and adult social care services should be included in the indicators of quality to be used in periodic reviews under Clause 42.

On Report in the other place, my honourable friend the Minister for Health gave an assurance that the registration requirements will be in line with the spirit of the European Convention on Human Rights. In its 15th report, the Joint Committee on Human Rights queried whether this recognised that the European convention has legal force in the UK. I am advised that the convention itself does not—in the same way as any other treaty to which the UK is party—but the Human Rights Act gives very strong force to the substantive rights drawn from the convention. Crucially, however, the registration requirements will go beyond the convention rights, both in content and in their application to persons not subject to the Human Rights Act.

The Government want all providers to follow the sensible principles set out in the convention in order to ensure that they deliver appropriate and effective care. That is why it is our intention that the registration requirements reflect the spirit of the European convention. It is also through the registration requirements that the commission might have a role in monitoring the

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provision of information to people about their rights, although I maintain that that is primarily a role for the Equality and Human Rights Commission and will go on to outline what work it will be doing. As currently drafted, the registration requirements include a requirement to involve people in making informed decisions about their care and treatment. Something similar to this draft would address the proposal in Amendment No. 19, but Members of the Committee will be aware that those requirements are currently out to consultation. I will welcome views on whether we have got the balance right.

The Care Quality Commission will also have to bear convention principles in mind in its periodic reviews. Tackling health inequalities and social exclusion for vulnerable groups are government priorities for performance assessment. However, it would be impossible to set indicators that measure whether someone’s rights have been respected as proposed by Amendment No. 76.

Amendments Nos. 68, 70 and 72 relate to Clause 41, which enables the Secretary of State to publish statements of standards relating to healthcare provided and commissioned by primary care trusts. PCTs will need to have reference to standards issued under this clause in discharging their duty of improvement under Clause 133. Amendment No. 68 would require the Secretary of State to publish standards rather than enabling him to do so. Amendment No. 70 seeks to extend the standards to apply to all health and social care bodies.

The new clause proposed in Amendment No. 72 sets out a number of rights-related topics which it is proposed should be covered by these standards. It is important to remember that the standards which will be drawn up under Clause 41 are not intended to be requirements which providers of regulated activities must meet in order to be registered with the Care Quality Commission. Standards under Clause 41, on the other hand, will be designed as improvement tools to help to deliver high-quality publicly funded healthcare. We envisage that they will be used primarily by clinicians and managers to measure and improve the care they give to their patients and by patients to make informed choices about treatment providers.

The Secretary of State should not be required to issue standards, as envisaged by Amendment No. 68, rather than be enabled to do so. Standards will be issued only where it is clear that they can contribute to enhancing the quality of care, where there is a need for a common framework and terminology, and where there is a broad consensus between the department, clinicians, managers and patients about the role that standards can play in driving improvements. It is unnecessary to make similar provisions to apply to publicly funded social care, as envisaged by Amendment No. 70. Local authorities have their own local and national reporting and accountability arrangements, and the Minister for Communities and Local Government has powers to issue standards under the Local Government Act 1999.



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It is our intention ensure that the standards can deliver real improvements in care by involving a wide range of individuals and bodies in drawing up their content and subjecting any new or changing standards to full public consultation. This is necessary to ensure that the standards are widely supported by the clinical community and patients. I am sure that the Joint Committee on Human Rights will have a valuable contribution to make to this future process and would be happy to ensure that it is informed of any standards consultations.

I hope that I have been able to set out clearly where I believe the commission should have a role in promoting the principles of human rights legislation and why it should not have more specific responsibility than I have outlined. However, I take seriously the concerns that the Joint Committee has expressed that public authorities have tended to take a minimalist view of compliance with the Human Rights Act and have not used the Act positively to enhance the protection and promotion of rights.

As to what the Government are currently doing, I think that most Members of the Committee will know that the Government have already distributed guidance and a toolkit on human rights in healthcare to the NHS, which is available to the public. Independent evaluators have been commissioned by the Department of Health to assess the benefits to NHS organisations of using human rights-based approaches. The department intends to publish the evaluation before the end of this year.

In addition—and this is something close to my heart as a clinician working in the healthcare service—the Social Care Institute for Excellence published Promoting dignity within the law, which was commissioned by the Department of Health to help practitioners and commissioners of health and social care services understand how legislation protects people’s rights to be treated with dignity. It provides a concise guide to the law on discrimination and equality issues, but with strong emphasis on the centrality of a human rights-based approach to improving people’s lives.

I hope that I have given Members of the Committee a helpful review of where the Government stand on the human rights issue. I have no doubt that we will be discussing this more in due course. I very much hope that the noble Baroness, Lady Stern, and the noble Lord, Lord Low, will agree to withdraw their amendments.

Baroness Stern: I am very grateful to all Members of the Committee who have supported these amendments so eloquently and to the Minister for that extremely full reply. I have to admit that I shall need to read and concentrate on it fully in order to absorb the implications of the Government’s response. I think I heard the Minister say that something we proposed, which was supported, is of interest to him. I see some nodding coming from that quarter, so that raises my spirits a little.

However, I do not quite understand why the Government find their own legislation so frightening. The Human Rights Act is not frightening at all. It just

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says that people are entitled to respect and dignity, to not be ill-treated and to be listened to and that things should be fair. It is not very demanding on resources and people do not find it difficult when they understand it. The people getting this service would rather be treated in that way, and the people giving the service would feel better about themselves and their professionalism if they gave the service like that. It is a gift. It is not something to run away from or to feel gets one into all sorts of difficulties.

I hope that this very helpful debate will encourage the Minister to look at the Human Rights Act as a blessing, rather than as something fearful, and that we might at the next stage be able to secure a little

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more of what we hope will be in this Bill. With that enormous hope and with great gratitude to all those who have supported this amendment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Darzi of Denham: This may be a convenient moment for the Committee to adjourn until tomorrow at 3.45 pm.

The Deputy Chairman of Committees (Viscount Simon): The Committee stands adjourned until tomorrow.


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