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Health and Social Care Bill

As has already been said, this group of amendments deals with a number of matters raised in the legislative scrutiny report of the Joint Committee on Human Rights, which was published earlier this month. It has provided a very helpful human rights perspective to the Bill and I would like to take this opportunity to pay tribute to the Committee's diligent and important work under the chairmanship of my hon. Friend the Member for Hendon (Mr. Dismore). Indeed, I pay tribute to all hon. Members who contributed on the issue of human rights as the Bill went through Committee. I hope to offer some words of comfort to my hon. Friend and to them, but I also need to say from the outset that we do not believe that most of the amendments in the group are necessary. I shall come on to explain why in a few moments. We agree with the principle behind the Joint Committee's proposed amendments, but we do not see the need to inscribe everything in primary legislation. I understand that proposing a large number of amendments in this way represents a new approach for the Joint Committee, but in this instance I am not sure that it is the most effective way to proceed. Where the Government are giving undertakings or are already pursuing a particular policy, I hope that the Committee will accept those undertakings rather than pursue the course of specifying every last detail directly in the legislation. New clause 1 is designed to apply the Human Rights Act 1998 to all public and all independent providers of health and adult social care registered with the new Care Quality Commission if the care is publicly funded either wholly or in part and is pursuant to statutory powers. We heard a great deal in the evidence presented to the Committee and in the Committee's own deliberations about the case for bringing private and voluntary sector health and social care providers within the scope of the Human Rights Act 1998. I said, and I repeat, that I am sympathetic to the intention of dealing with publicly funded care, be it health or adult social care, that is behind the new clause. I thank my hon. Friend and his Committee for setting out the issues so clearly. As I hope I made clear in Committee in response to a number of proposed amendments, including those tabled by my hon. Friend the Member for Luton, North (Kelvin Hopkins), the Government are firmly committed to amending the Human Rights Act to ensure that all publicly arranged care provided by the independent sector is covered by it. We have agreed with the Ministry of Justice that it would be appropriate to use the Health and Social Care Bill to strengthen regulatory powers to ensure that the Care Quality Commission can enforce regulatory requirements in line with the spirit of the European convention on human rights. However, as I indicated, we have difficulties with new clause 1 as drafted. For example, it links the coverage of the Human Rights Act to ““regulated activity””, as defined in clause 4, which would be registered with the Care Quality Commission. That merely provides for regulations to determine what is a regulated activity. Therefore, the scope of the Human Rights Act could be altered by secondary legislation. I am sure that that is not the intention of my hon. Friend the Member for Hendon. I suspect that the relevant Committee in another place would consider it an inappropriate delegation of powers for an Act as important as the Human Rights Act. Moreover, we are also not sure what would or would not be covered by the test within the new clause of care provided"““wholly or partly at public expense””." Would that cover all residents in a care home where one out of 50 was funded by a local authority? Would it apply to everyone receiving care provided by a charity that received a very small annual grant? However, as I said, I am sympathetic to the intention behind the amendment and the concerns expressed by evidence givers and by members of the Public Bill Committee and the JCHR. I undertake to consider the issue of publicly arranged health and adult social care and the Human Rights Act in the context of this Bill, with a view to the Government reporting back on that important issue during its passage in the other place. I hope that that offers some reassurance to my hon. Friend that the Government are continuing to consider the issue. In the light of that, I hope that he agrees to withdraw the motion. Amendments Nos. 3 and 4 would place a duty on the Secretary of State to ensure that regulations under clause 16 include provision intended to secure the rights of those receiving services in addition to their health, safety and welfare. We must be careful not to create an expectation that the new Care Quality Commission will be a quasi-judicial or ombudsman-type body, as the amendments would do. Regulations under clause 16 will set out specific requirements that will be in line with the spirit of the European convention on human rights, but are relevant to the provision of health and social care services. It will be by enforcing those specific requirements on health and social care provision that the commission will support the promotion of human rights. New clause 2 and amendments Nos. 5, 6 and 7 would require the protection and promotion of human rights to be central to the work of the commission. We had quite a lot of discussion about that in Committee, not least in response to the amendment tabled by my hon. Friend the Member for Luton, North. I confirmed that as a public body, the commission will of course be subject to the Human Rights Act and will have to carry out its functions in ways that are compatible with it. In carrying out its work in checking that providers comply with the registration requirements, the commission will be able to ensure that providers follow the spirit of the European convention on human rights. We are keen to get the registration requirements right. Rather than this being a ““tick-box exercise””, to quote my hon. Friend the Member for Hendon, the commission's work in ensuring compliance will be a real driver to help to achieve the ““wholesale cultural change”” that the JCHR's report seeks. I also encourage all those with an interest in the safety and quality of health and adult social care services to participate in the forthcoming consultation on those registration requirements. That is an open invitation to him and his Committee to do so. Amendment No. 8 would require the commission to perform its functions in a way that encourages health and social care services to improve the information that they provide to patients and service users about their rights. We agree that it is important that people have information on their rights and entitlements so that they can make informed decisions about their care and treatment, but the amendment is not necessary to achieve that. The Government have already distributed guidance and a toolkit on human rights and health care to the NHS, and that is available to the public. The Human Rights Act makes it unlawful for the Care Quality Commission, any NHS body or local authority, as public authorities, to act in a way that is incompatible with the convention right. It is therefore for the courts to ensure that they comply. Of course, other bodies, such as the Equality and Human Rights Commission, have a leading role in that. Amendment No 11 would require the commission to have specific regard to whether adequate advocacy services are available when carrying out its functions. The Government recognise the importance of good advocacy services. Section 12 of the Health and Social Care Act 2001 gives the Secretary of State for Health a duty to arrange the provision of independent advocacy services for those who make complaints about the NHS, and we established the Independent Complaints Advocacy Service to support patients and members of the public wishing to complain about their NHS care or treatment. In the context of social care, we intend to provide equal access to advocacy alongside the new complaints arrangements. We are still examining the details of how that can best be achieved. While the commission will encourage the provision of good advocacy services through its review functions and by monitoring the adequacy of complaints processes operated by service providers, we do not consider that that should be central to its role. It would therefore be inappropriate for us to include it in the list of the matters to which it must have regard as a matter of course when carrying out its functions. New clause 4 is linked to clause 41, which enables the Secretary of State to publish statements of standards relating to health care provided and commissioned by primary care trusts. The standards will provide a practical set of benchmarks for different services. The new clause sets out a number of topics to be covered by standards under clause 41, relating to the rights of patients and service users. We intend to hold wide-ranging discussions and full consultation with patients and clinicians on the details of the standards, because we want to ensure that they deliver real improvements in care. We feel that it would be inappropriate to set out the details in the Bill in advance of that consultation; indeed, I am not convinced that such standards should be in primary legislation at all, as it will be necessary to refine them frequently. My hon. Friend the Member for Stoke-on-Trent, North (Joan Walley) expressed concern about publicly commissioned services provided by private non-urgent ambulance services. I invite her to make the case that she has made today during the consultation on the registration requirements, but I can reassure her that any publicly provided health or social care service will fall within the scope of the Bill, in terms of both human rights and registration requirements.