Health and Social Care Bill

My Lords, if I am a very frail, vulnerable, sick person in need of support or care, and I go into a residential home, my human rights will be protected. In this case, that means the right to dignity, respect, and privacy if I am having intimate care. If I have exactly the same needs and exactly the same services provided for me in my own home, my human rights are not protected. But I am the same person. My human rights now depend on whether I am down the road in a residential home or have the same services in my own home. That cannot be right. This amendment is designed to close the loophole in the law that allows this. It means that if a public body has arranged or contracted the service, it is a public function within the meaning of Section 6(3)(b) of the Human Rights Act, so it brings certainty that I will get my human rights protected. These are not controversial rights—it is just decent care. We know that almost half a million older people receive essential care in their own homes, commissioned by their local authority in England, excluding the other devolved areas. Approximately 84 per cent of these people lack the protection of the Human Rights Act because their care is provided, as we now know, by private or third sector organisations. We received compelling evidence of the extent of human rights breaches in home care settings in the findings of the Equality and Human Rights Commission's formal inquiry into the human rights of older people receiving home care. As the lead commissioner on ageing, I was part of that inquiry. This amendment is supported by many organisations. Among them are Age UK, the British Institute for Human Rights, Disability Rights UK, the Equality and Diversity Forum, Justice, Liberty, Mencap, the Scottish Human Rights Commission and the Northern Ireland Human Rights Commission. In its report Implementation of the Right of Disabled People to Independent Living, published on 1 March 2012, the Joint Committee on Human Rights recommended that the Health and Social Care Bill should be amended in this way. My understanding, however, is that while the Government have no argument with the view that the Human Rights Act should apply to private and third sector organisations providing publicly commissioned home care, it seems that they consider that the law provides this coverage already and that this amendment is therefore unnecessary. I share the commission's view that private providers of services, under arrangements made with the relevant statutory bodies under the NHS Act as amended by the Bill, will not necessarily continue to be carrying out a function of a public nature. The Equality and Human Rights Commission feels that the Department of Health's analysis of current case law is a bit overoptimistic. Were this question to be determined by a court, the outcome could not be predicted with any certainty. I want to thank the Minister for giving a huge amount of his time and consideration to these issues. I know that he is wholeheartedly in support of the principles behind my amendment. It is plain that he has an undoubted commitment to avoiding human rights abuses in health and care settings. However, the fact remains that any relevant assurances that he might give us, while very welcome, must fall short of providing the urgent legal clarity about the scope of the Act that I believe to be very important. They would not provide service users with clear legal redress for human rights abuses or breaches, or give providers an immediate legal incentive to apply human rights standards to service delivery. I am not suggesting that legislative provisions are the only guarantee of human rights protection, but I would argue that they are an important part of the solution. I recognise that, going forward, the Government's policy agenda could—and, I hope, will—provide opportunities to embed more effectively a human rights approach in health and social care. Seeking change in service culture and practice of services is very important. However, while these policy opportunities are very worthy of consideration, closing this legal loophole would put down a clear legal benchmark that would positively help to build cultural change in the health and social care sector. Such policies that the Government now have, however well-intentioned, are not a substitute for clear legal obligations under the Human Rights Act. Those would give individuals the right of redress against service providers for human rights breaches. The Government might also have reservations that making express reference to human rights in a health context could cast doubt on other areas beyond health or social care where public services are provided by private bodies. However, I do not agree that a reference solely in health and social care would cast such doubts on other policy areas. Thinking about the operation of such a reference in reverse, it would be difficult to see how a specific reference in justice or education legislation could reasonably affect social care or healthcare. In closing, I must reiterate that I feel that the law is not certain. In my view, the current legal position is evidently unsatisfactory. There may good arguments to support the view that providers should consider themselves bound by the Act and the duty. There are also legal arguments against that position. There is no way to predict what view a court might adopt. Support for this amendment will clarify beyond doubt the fact that a person commissioned to provide home-based social care or healthcare is performing a public function with the responsibilities that are within such a function and within the meaning of the Human Rights Act and the Equality Act. I hope that the Minister will find it possible to support this amendment. I beg to move.