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Health and Social Care Bill

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