Health and Social Care Bill

Lord Low of Dalston Excerpts

Tuesday 13th December 2011 Lords Chamber

[Baroness Greengross]

My Lords, I was recently privileged to be the lead commissioner for the Equality and Human Rights Commission on an inquiry, looking at the human rights of older people in their own homes in need of care and support. This inquiry was a very large one with a lot of evidence, involving 500,000 people in total in this country. We found that half of the people were very happy with the care they received. The other half—250,000 people—were rightly not happy with what had happened. There were awful instances of people being abandoned for 10 or 12 hours, having no social interaction or opportunity to talk or chat. They were left without care for many hours. These are very bad instances of poor care and I really believe that had the staff of the 250,000 people been trained properly in what the tool of human rights can achieve—and if their managers had understood that—a whole lot of these instances of very poor care would not have taken place.

My amendment is designed to ensure some clarity on the application of the Human Rights Act to domiciliary care services commissioned from private and third-sector organisations. This amendment would clarify that providing these services is a public function within the meaning of Section 6(3)(b) of the Human Rights Act 1998. It would bring domiciliary care in line with residential care; similarly, this amendment would confirm that health care services commissioned from private and third-sector organisations fall within the scope of the Human Rights Act. It would clarify the extent of the public sector equality duty because the definition of public function under the Human Rights Act also determines the definition of public function under Section 150(5) of the Equality Act 2010 for the purposes of the public sector equality duty. My amendment also uses wording which is consistent with Schedule 1 to the Health and Social Care Act 2008.

In 2008, Parliament introduced amendments to the Health and Social Care Bill—now the Act—to overturn previous case law and ensure that private and third-sector care homes were defined as carrying out a public function. We were delighted that that applied and that they therefore came under the scope of the Human Rights Act. This received cross-party support and was the result of a long campaign by the EHRC and also the Joint Committee on Human Rights. The campaign aimed to ensure that organisations receiving public money were subject to proper regulation.

We also know that a similar problem is likely to be the case in healthcare if the care is commissioned by the health service to private or third-sector organisations. It is very important to make this clear because the fact that private and third-sector providers operate at the moment outside the scope of the Human Rights Act undermines, or threatens to undermine, the pioneering work of the Department of Health itself in promoting its Dignity in Care campaign. Further, the Health Service Ombudsman has recently documented 10 investigations into NHS care. All of that demonstrates that we need clarity in order to get this right and make sure that people are protected. We must be certain that people are not subjected to breaches of human rights which no one can do much about in the present situation.

I have cut short what I was going to say because it is late, but I do want to say that support for this amendment will clarify beyond doubt the fact that a person commissioned to provide home-based social care or healthcare is, in providing that sort of service, performing a public function within the meaning of the Human Rights Act and the Equality Act. I hope that the Minister will find it possible to support the amendment.

[Lord Low of Dalston]

My Lords, I have added my name to Amendment 295G, to which my noble friend Lady Greengross has just spoken, and I strongly support it. As she made clear, it would put an extremely important point beyond doubt. I want briefly to underline three key points.

First, it would remove a major ambiguity about the scope of human rights legislation in relation to health and social care, and with it persisting doubt about the rights of those in receipt of health and social care services. Despite the then Government’s intention that responsibility under the Human Rights Act should follow the outsourcing of state functions, it was generally understood—this was confirmed in the case of YL against Birmingham City Council—that the Human Rights Act covered only residential care provided by local authorities. Private and voluntary organisations that provided care home services under a contract with a local authority were not considered to be performing public functions under the Human Rights Act because there was only a contractual relationship between the parties, and so were not covered. This loophole, as my noble friend Lady Greengross has explained, was closed by Section 145 of the Health and Social Care Act 2008, but only for residential care services. It did not apply to contracted-out social care services provided in people’s homes. The purpose of the amendment is therefore to clarify that the Human Rights Act extends to services provided in people’s homes when provided under contract to a public authority and would remove all ambiguity as to whether the Human Rights Act applies to such services when commissioned from private and voluntary organisations.

As my noble friend has explained, a similar issue arises in relation to health services, especially given the significant increase in the commissioning of NHS services from private and voluntary providers envisaged by the present Bill. Amendment 295G would also place beyond doubt that private and voluntary providers of healthcare services fall within the scope of the Human Rights Act and the public sector equality duty, putting them on a similar footing to providers of residential social care. The amendment would therefore make it clear that those who receive publicly funded health and home care services provided by the private and voluntary sector are guaranteed the same levels of protection and rights to redress as those who receive services provided directly by the state, placing them on the same statutory footing as those who receive residential care services commissioned from the private and voluntary sector.

This is not just a matter of academic importance—the removal of a minor technical anomaly. Quite apart from the fact that it puts beyond doubt that a significant swathe of health and social care provision is within the scope of the Human Rights Act, local authority provision of home care services has been on a downward trend for the past couple of decades, with the result that the state now directly provides only 16 per cent of publicly funded services. This means that 84 per cent of such services are provided by the private and voluntary sector. This figure was less than 5 per cent in 1993. Indeed, the proportion of care delivered by the private and voluntary sector has gone up from 56 per cent to 84 per cent in the last 10 years. This means that the possibility that people in receipt of health and social care services may be deprived of the protection of the Human Rights Act has moved from being an issue at the margins of the field of health and social care to being one of central—indeed, dominating—importance.