Health and Social Care Bill

There speaks a lawyer. Suffice it to say that everything about the matter is extremely complex and open to question, interpretation or qualification. The YL case took many by surprise. It was hardly clear-cut—the Law Lords were split three to two. They used a factor-based approach to determining whether an organisation other than a public authority is performing functions of a public nature. However, it is fair to say that each and every one of the factors employed is hedged about with qualifications. In support of its view on outsourced NHS services, the Department of Health cites the Weaver case, where the Court of Appeal decided—once more by a majority—that a registered social landlord was performing a public function when allocating and managing social housing. However, some legal commentators thought that this was a surprising decision too, because it sits oddly with the YL case. This again emphasises the ambiguity of the case law and indicates that the outcome of future cases cannot easily be predicted. Indeed, an opinion obtained by the EHRC from senior counsel suggests that the reverse is the case. After detailed legal analysis of the statutory framework and case law, counsel concluded that each aspect of the Law Lords' negative reasoning regarding residential care in the YL case applies equally to the provision by private care providers of home care services. We do not have to take a view on whether the commission is right and the Government wrong. If the Government have no problem with the policy position which they have sought to reinforce, it is enough that there is a doubt. Why not put the matter beyond doubt and avoid all the uncertainties of the case law by putting this amendment in the Bill? The Government say that they would not wish to cast doubt on other areas beyond health where public services are provided by private bodies by making express provision in this area, but all this amendment is seeking to do is to finish plugging the gap opened up by the YL decision and not completely addressed by the Health and Social Care Act 2008. At that time it was not so clear that there was a human rights problem in relation to non-residential services, but following a welter of reports from the Health Service Ombudsman, the CQC, the Patients Association and the EHRC, we now know that there is. The Equality and Human Rights Commission's inquiry into older people and human rights in home care revealed disturbing evidence of older people being exposed to ill treatment that raised human rights concerns. There has also been shocking evidence of serious breaches of the human rights of older people receiving NHS care. The JCHR advised the Government two years ago that they should take the first legislative opportunity to clarify matters in relation to health services. Knowing what we now know, there should not be any further delay in clarifying the scope of the Human Rights Act in relation to health and social care services. The Government really have no excuse for not acting.