Health and Social Care Bill

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. A second reason why this is an issue of overriding importance is that we now know that significant numbers of people are the victims of human rights violations on a daily basis. A seemingly endless sequence of reports—from the Health Service Ombudsman, the Care Quality Commission, the Patients Association and the Equality and Human Rights Commission—shows that the rights of older and disabled people in health and social care settings are regularly ignored or wilfully abused. According to the British Institute of Human Rights, these reports reveal how some of the most vulnerable people in our society are treated in inhuman and degrading ways, with neglect and carelessness, and how they experience, "““Lack of privacy, dignity and confidentiality””," are left without access to food and water, and are bullied and patronised. These incidents are not simply isolated or exceptional cases. I welcome the statement in the Explanatory Notes to the Bill that contracted-out healthcare services are covered by the Human Rights Act, and the Minister’s assurances in this regard would be equally welcome. But these do not have the force of law. Moreover, the Equality and Human Rights Commission does not believe that case law supports this view. Nor should we have to rely on an elderly or disabled service user having to incur the hazard and expense of going to court to vindicate their rights for us to clarify the law. At all events, it is not the same as having it in black and white in the Bill, so I very much hope that the Minister will respond sympathetically to this important amendment.