Care Bill [HL]

Lord Faulks Excerpts

Wednesday 16th October 2013 Lords Chamber

[Lord Warner (Lab)]

I rise as a member of the Joint Select Committee to strongly support the amendment. I shall not go over the previous legal history, or repeat what I said in Committee, other than to emphasise a particular aspect of the case to which I drew attention then. That case related to an elderly woman in her 90s who was resident in a private care home and was totally self-funded. She had been a resident for some time and had the temerity to air her views on assisted dying, which did not please some of the home’s staff. She did not seek anybody’s help to commit suicide; she just expressed her views. The home’s management gave her four weeks’ notice to leave the home as a result. When her son raised the issue of her rights under the Human Rights Act with legal counsel, the opinion he was given was that she lacked protection under that Act because she was not in receipt of a service from a body providing a function of a public nature as her placement was neither publicly provided nor in a publicly funded home.

As a member of the Joint Select Committee I raised this matter when we were looking at the Bill and, after deliberation, the committee was unanimous in recommending that the Bill should be amended to clarify matters. This is what the amendment moved by the noble Lord, Lord Low, does. It covers all users of a regulated social care service. It is clear that there are differences of legal opinion on this matter when particular cases are raised. I consider that as parliamentarians, it is our duty to put the matter beyond doubt and provide self-funders with the legal certainty that other elderly people may have when they are in receipt of either domiciliary or residential care.

One of the most important new points that has been made on this issue since we debated it before was made by the noble and learned Lord, Lord Hope of Craighead, when he said that courts will notice if we do not take this opportunity to amend and clarify this legislation. That means that we cannot—as one of my children would say—faff around any longer on this issue. We have to make a decision; the amendment makes that decision, and we should all support it. Frankly, the Government should stop the legal equivalent of counting how many angels can be put on the head of a pin and accept the legal certainty that the amendment moved by the noble Lord, Lord Low, provides. They should be supporting people who are paying their own way by funding their care, not the reverse. There will be a lot more of them in the future so let us provide that protection now.

[Lord Faulks (Con)]

My Lords, I share, of course, the concern of all noble Lords that we should take all reasonable steps to protect vulnerable people who receive social care in whatever circumstances. I enter this debate for the first time with considerable trepidation, having regard to the great distinction of those, both present and absent, who support this amendment. I have to express some real doubts about it.

As far as I am aware this is the first time an attempt has been made to include, within the scope of the Human Rights Act, what may be a purely private function. Those who receive care may not be overly concerned with whether it is being provided by a public authority, a private provider, or in some hybrid arrangement. Nevertheless, this amendment is in effect extending the scope of the convention beyond the terms of the Human Rights Act.

It is important to consider what protection would be available anyway, in the absence of this amendment. If a poor standard of care is provided to an individual, it is likely that the provider will be in breach of an express term of any contract or in breach of a term implied by the Supply of Goods and Services Act 1982. There will almost certainly be a claim in tort, probably relying on the tort of negligence. There is, of course, a further safeguard in relation to all providers of publicly arranged care, in that all such providers have a duty imposed by Section 6 of the Human Rights Act, at least following what I would submit was the closing of the YL loophole by Section 145 of the Health and Social Care Act. The CQC, as a regulator and a public authority, is subject to the convention.

However, the amendment would, as I understand it, purport to provide some additional remedy; presumably some award of damages. The noble Lord should be aware of the relatively limited scope of damages awards under the Human Rights Act. As Lord Bingham said in the Greenfield case in 2005,

“the 1998 Act is not a tort statute. Its objects are different and broader. Even in a case where a finding of violation is not judged to afford the applicant just satisfaction, such a finding will be an important part of his remedy and an important vindication of the right he has asserted. Damages need not ordinarily be awarded to encourage high standards of compliance by member states, since they are already bound in international law to perform their duties under the Convention in good faith, although it may be different if there is felt to be a need to encourage compliance by individual officials or classes of official”.

The House of Lords also emphasised that the Human Rights Act was not to be regarded as a panacea. Indeed, Lord Bingham went on in Greenfield to say that the purpose of the Act,

“was not to give victims better remedies at home than they could recover in Strasbourg”.

However, that would be the position here if this amendment was passed. My conclusion is that the amendment amounts to an illegitimate extension of the Human Rights Act and would not, in reality, provide any significant extra protection for those who, quite understandably, we wish to protect.

The future of the Human Rights Act will have to await the outcome of the next election. However, amending the Act, which is what in effect this will do, would be inappropriate and, I have to say, unnecessary.

[Lord Mackay of Clashfern]

Before the noble Lord sits down, can he explain what, in his view, the remedy is for the case to which the noble Lord, Lord Warner, referred?

[Lord Faulks]

I understand that in the case to which the noble Lord referred, there was a private provider. There would therefore be the remedies I referred to earlier in my remarks—the normal remedies that those who receive services through a private arrangement would have. The Human Rights Act of course is concerned entirely with remedies against public authorities. I respectfully suggest that one must not lose sight of the remedies that exist, and have always existed, in relation to breaches or violations of anybody’s rights in the circumstances described.

[Baroness Finlay of Llandaff (CB)]

Before the noble Lord sits down, can he just clarify something? Noble Lords will have to forgive me, because we have had some very learned legal arguments here and I speak as a simple clinician. Half of the patients in a place of care run by a private provider may be funded by, and have gone through assessments provided by, the NHS. They would therefore be covered by the Human Rights Act but the other half, who have to fund their own care because some official somewhere said that they did not fall within the bar for continuing care funding, would not be covered. The decision as to whether the cover, at the end of the day, applies or does not apply will be left to whichever person determines the funding bar for that individual, as opposed to our knowing that we have protection for those who are vulnerable across the piece.

[Lord Faulks]

The noble Baroness refers to protection. With respect, the assumption behind her question is that, whatever the arrangements, those people would lack any protection. The burden of my speech is that they would have protection anyway. There is, of course, a distinction between whether their care is a result of a publicly procured arrangement or a purely private arrangement. In the latter case, as the law is currently, there would not be any involvement of the Human Rights Act. But, with respect, the House should not be under any illusion that there is no remedy or no protection for people in the circumstances where there is a private arrangement.

[Lord Mackay of Clashfern]

The noble Lord sat down without answering the question that I asked him, which I am very keen for him to answer. My understanding is that this elderly lady was in a home and she was given full notice to leave; there was no question of any breach of contract or anything of that kind. Therefore, the sorts of remedies to which the noble Lord has referred would not be available, whereas under the Human Rights Act there is at least a very considerable probability that she would have some protection.

[Lord Faulks]

I am sorry that I did not answer the question adequately for the noble and learned Lord. My response is that actually the Human Rights Act remedies, which I endeavoured to deal with in my remarks, would not of themselves provide the sort of remedy that the noble Lord, Lord Warner, had in mind. As was outlined by Lord Bingham in the Greenfield case, the remedies are in fact very limited, very often amounting to a decision that there has been a violation, rather than the sort of practical remedy that I understand the noble Lord to have in mind. That is my response.

[Lord Warner]

My Lords, just to clarify matters, if this lady had been covered by the Human Rights Act, the son would have been able to take legal action to try to prevent the home removing her. The mischief that was being committed was the forcible removal of a woman in her 90s from the place that she had lived in for a very long time. What the Human Rights Act—as I understand it; I am not a lawyer—would have provided protection for was the ability of a relative to seek protection from the courts that this home, in taking that action, was actually in breach of the Human Rights Act. I do not think that the noble Lord’s suggested remedies would have helped in this case or any other like it.

While I am on my feet, I say to the noble Lord that this Act changes the position anyway, because that lady, or a similar person in the future, might well have come up against the cap on her privately funded care and her care would then be paid for by the state, which would be performing a public function—or a function of a public nature—in paying for her care in that private provision. This Act changes the dimension from the past as well.

[Lord Hope of Craighead]

My Lords, I do not know whether I am permitted to speak again since we are on Report but perhaps I might just say for clarification that in my opinion the analysis by the noble Lord, Lord Warner, of the reach of the Human Rights Act is entirely accurate. We have had a number of cases, in both the House of Lords Appellate Committee and the Supreme Court, dealing with the kind of problem where people say that they are losing their home because of steps being taken to remove them from premises that they occupy. It is that reach and the uncertainty that has been drawn attention to, where some people have the protection and some do not, that causes real problems.

[Lord Faulks]

In response to that, of course the Act provides that a court can give just satisfaction, and the remedy may include something of the sort to which the noble and learned Lord refers. However, if there is, as I think I understand the facts of the case, a violation of ordinary private law principles, the remedy should in those circumstances be available. But I think I have trespassed on the House’s patience for long enough.

[Lord Skelmersdale (Con)]

My Lords, this debate seems to have degenerated into a recommittal stage, which the noble Lord on the Front Bench opposite called for at the very beginning of today’s proceedings. However, I do not think that he, or I, or probably anybody else, wants to recommit this particular clause which is, after all, a new clause.