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Older People's Rights (Health Care)

I congratulate the hon. Member for Hendon (Mr. Dismore) on the way in which he summarised the findings of the report and the reaction to the Government response to it. I also thank him for his chairmanship of the inquiry. As a member of the Committee, I can certainly testify to the fact that it was a thorough and serious inquiry, examining what could have been a very wide field. Efforts were made to narrow down the issues that we considered in order to produce a focused report that was able to make specific recommendations in the relevant time scale. Our Committee is a busy one. It scrutinises the human rights compatibility of all Government Bills and some private Members' Bills, and considers the UK's compliance with treaty obligations and judgments in our domestic courts and at the European Court of Human Rights in Strasbourg on human rights cases. It also conducts thematic inquiries; the one that we are discussing was a significant piece of work last year. I endorse everything that the hon. Gentleman said. I just want to make a number of additional comments. First, I apologise to the Minister, to you, Lady Winterton, and to other hon. Members present because I will not be able to stay to hear the concluding remarks. Therefore, I shall not ask any specific questions of the Minister; I shall just add some commentary to what the hon. Member for Hendon said. I was struck by a process issue, which I shall place on the record in the hope that clarification can be given. Our report contained 54 conclusions and recommendations, but the Government response considered 36. I found that confusing. It turned out that those 36 included the expansion of one of our recommendations to two in a number of cases, so the Government probably responded specifically to only about 30 of the 54 conclusions and recommendations. What the Government have done—I am not criticising this; I am just commenting because it is not something that I have noticed before—is respond only to those conclusions and recommendations that were recommendations. Perhaps that is appropriate, but I think that when we put certain parts of our report in bold type and considered them conclusions, we were expecting the Government to react to the assertions that we were making, even when they did not start with the words ““We recommend””. Perhaps there is an issue of process for those of us on the Committee to consider. Perhaps we should specifically say at the end of every assertion, ““We recommend that the Government respond to this assertion,”” because if that does not happen, it is hard to engage in the give-and-take of a report and response as fully as we would want. In fairness, I accept that the Government did engage on the points to which they responded. I suspect that the Government are not able as effectively to clarify which of our assertions they disagree with. A couple of those are exemplified in the recommendations that we made on delayed discharges, which was the subject of one of the first sections of our report. The hon. Member for Hendon spent some time explaining why we were concerned. Our conclusions and recommendations included a number of points that were not formal recommendations. For example, we said:"““We are…concerned that the premature or inappropriate discharge of older people could lead to their readmission shortly afterwards.””" I would be interested to know from the Government whether they think that delayed discharges could have the unintended and possibly unavoidable consequence—this may just be something that has to be accepted—of an increase in readmissions, which is not necessarily in the clinical interest of any patient, but particularly not in that of older patients. The Government point out, and I accept, that when someone is clinically ready for discharge, the last place or one of the last places that they want to be is in an acute hospital. Hospital is then inappropriate, with the risk of infection and so on. There must, however, be a balance between that and over-hasty discharge, with or without the risk of readmission, but certainly where there is the risk of readmission. As I say, the Government gave a lengthy response to the conclusions and recommendations that they said they would respond to, and we should put on record our gratitude for that, but we did not get a full response on this issue, as the hon. Member for Hendon said. In theory, delayed discharge arrangements should not, as the Government intend that they should not, cause premature discharge where that is not in the patient's best interests—they may not be ready, or the circumstances may be inappropriate, as, for example, in the case of direct discharge to a care home where there is no interim arrangement. However, the evidence that we took, which was backed by data, rather than by mere assertion, suggested quite strongly that that was happening in practice, and it is what happens in practice, not in theory, that is the problem in human rights terms. Similarly, if everyone was healthy in theory, but a lot of people were not healthy in practice, we would still have the problem of people suffering ill health. In their response, the Government did not engage with the question whether it is right that the intention is that no one should be discharged directly from hospital to a care home. There is a great deal more to be said in this debate and beyond about to which evidence in our report the Government take objection. They are entitled to say, ““We don't think this evidence is correct. We think you heard only one side. This conclusion is not valid.”” However, given that they restricted themselves to responding to two specific recommendations—they call them 1 and 2 in their response, but both were part of conclusion and recommendation 3 in our report—we did not get the full picture. The Committee may well consider following the issue up in a further evidence session with the Minister so that we have the dialogue that the work of the Committee, the work in the report and the needs of older people merit. The second issue that I want to touch on is the National Institute for Health and Clinical Excellence. Again, the excellence and completeness of the speech by our Chairman mean that some of these issues have already been raised, but I want to raise a couple of extra ones. Paragraph 192 of our report states:"““In their evidence, NICE note that they have taken advice from their lawyers, and that their procedures are human rights compliant””." NICE went on to say that human rights were not often cited in appeals. However, that is not what should be required of the human rights culture in public authorities such as NICE. It is a matter not simply of compliance but of recognising that there is a positive duty to consider human rights and to seek to enhance their attainment by the group in question, which, in this case, is particularly vulnerable. That is why, in paragraph 193, the Committee says:"““In particular, we are not convinced that NICE are fully taking human rights into account in their decision-making.””" That sentence appeared in bold, but because we did not use the words ““we recommend””, there was no Government response. As a result, we do not know whether the Government agree that the evidence to which we drew attention is a fair reflection of what NICE is doing. Speaking of the place of human rights in NICE's social value judgment guidelines, which would seem to be an important place to consider human rights, Age Concern told the Committee:"““it was completely absent from that work.””" To be fair, the Government response to one of our recommendations on the issue confirmed that NICE was revising that guidance and that the issue would now be included. The Government said:"““The National Institute for Health and Clinical Excellence…are currently updating their document Social Value Judgements, which helps those developing NICE guidance in making their decisions. NICE will take this recommendation into account when updating the document, and will be consulting publicly later this year.””" That is useful to know, but that short paragraph is all that we have in response to quite a significant section of our report, which goes from paragraph 191 right to the end of paragraph 199. My other point about NICE relates to age discrimination, and this may be an indirect consequence of the way in which NICE works. In our report, we said—I am pleased that we did so and I may have argued that we should do so—that we did not take enough evidence on the nature of quality-adjusted life years, which are a significant part of the measure of cost-effectiveness. We did not take enough evidence to judge whether they were appropriate, particularly given the issue of indirect age discrimination. We received conflicting evidence on the issue. NICE told us that a measure of quality-adjusted life years could often be advantageous to older people. Indeed, one of the strange things about the reluctance of some health care providers to give surgical coronary care, for example, is that there is good evidence that the older people are—within reason and on average—the greater the clinical benefit of intervention. That might seem counterintuitive, but older people often find it difficult to compensate for a physiological problem, and once it is corrected, the improvement in their quality of life is more marked than it would be in that of a younger, fitter person. A younger person may already have compensated for the problem and will not, therefore, see such a vast improvement in their health as it affects their daily activities, even though the surgical correction is the same in each case. That is why NICE claims that quality-adjusted life years can be advantageous, but if there is a choice to be made about to which patient a rationed treatment such as a kidney transplant should be given, there is an understandable trend to give it—all other things being equal, although they often are not—to the younger person because they have more life years to gain. I think that that approach is reasonable, but such things should not be done surreptitiously or on the nod. There should be a public debate about the issue, and a decision should be made about whether the good innings argument is a legitimate basis on which to make difficult decisions when a scarce health care resource could help more than one person. That should be made explicit, and there should be a role for Parliament in deciding such things, not simply for a group of people brought together by NICE in a focus group. When it comes to age discrimination, there is a huge amount of sensitivity about such things, which clearly engage with human rights issues. Parliament has failed to make clear how it wishes such resources to be allocated. I was pleased that the Secretary of State for Health acknowledged that rationing did exist in the health service. He is the first Secretary of State for Health in this Government whom I have known to do that. I think that rationing exists, but the issue is whether it is fair and explicit, not whether we should have a false debate about whether it takes place or not. Older people may well be the victims of unfair rationing and they may, indeed, be unknowing victims, if they do not know that rationing is taking place. The hon. Member for Hendon also raised the point that some in the medical profession tend to use age as a factor, independent of clinical factors, in deciding what treatments to give. It is not acceptable to say that specialist cardiac care will be given to under-65s, while over-65s will get cardiac care as part of a care-of-the-elderly service. If there is an advantage to having specialist cardiac care, it should be available to everyone who can benefit from that care; it should not be made available simply on the basis of an arbitrary, if understandable, age cut-off. Far too often in the health service, we still see convenient cut-offs based on age, and that may, on one level, be because of sensitivity to the fact that older people need the series of skills provided by a care-of-the-elderly team. If the main problem of an otherwise healthy person who happens to be over 65 is cardiac, and they do not need the specialist input that a care-of-the-elderly teams can give, they should be seen by the specialist cardiac team, who can seek input from their colleagues in care of the elderly—not the other way round.