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Health and Social Care Bill

I shall try to address all the points that noble Lords have raised. I turn first to the issues raised by the noble Lord, Lord Low. As I said when moving the amendment, it is of course for the courts to decide who is covered by the Human Rights Act, as has always been the case. However, I set out the Government’s clear view that those who are placed in a care home by the NHS, which then pays for their care, are covered by the Human Rights Act. The Government’s clear view would also be that any person detained under statutory powers in the Mental Capacity Act would have Human Rights Act remedies against the institution in which they were detained. Otherwise, as I have said, it is necessary to consider every case on its circumstances. That is true particularly of non-residential care, which may vary greatly. The noble Lord asked also about guidance on rights. I can commit that we will work on guidance in England. We will need to discuss with our colleagues in the devolved Administrations what might be done there. The noble Baroness, Lady Murphy, spoke about publicly arranged care. The amendment is expressly linked to the National Assistance Act 1948. It is the statutory function that matters. As I said when I opened this debate, the consultation will address precisely publicly arranged care. The noble Baronesses, Lady Masham and Lady Howarth, mentioned people who fund their own care and their rights of redress. It remains fundamental that the Human Rights Act is about public functions. In other words, the legislation concerns the interface between the individual and the state. This is the philosophy that underpins the European Convention on Human Rights and therefore also the Human Rights Act. The state must ensure that individuals respect each other’s rights, which is not the same as placing private individuals and enterprises directly under obligations which were designed to apply to Governments. It follows that the Human Rights Act is not the appropriate framework for regulating contracts arranged privately, without the state’s involvement, between care homes and private individuals or their families. However, the Bill will strengthen regulatory powers to ensure that the Care Quality Commission can enforce regulatory requirements which are in line with the spirit of the relevant provisions of the European convention. This will apply to all providers of regulated care and service users, whether they are publicly or privately funded. While these requirements do not confer on people using health or social care any individual rights of legal redress under the Human Rights Act, they should ensure that everyone receives care which conforms to the spirit of the convention rights. The noble Baroness, Lady Howarth, asked about the timetable for consultation. As I said in my opening speech, it depends on the progress of these amendments. There is also the wider context of working towards a British Bill of Rights and Responsibilities. I cannot therefore give a definitive timescale, but my honourable friend the Minister for Human Rights is seized of the importance of this issue.