Memorandum by the Department of Health
DEPARTMENT OF HEALTH REPORT TO THE JOINT
PARLIAMENTARY COMMITTEE ON HUMAN RIGHTS
1. What efforts have been made so far to
implement the Act, and in particular, to build a "human rights
In the countdown to the HRA coming into force,
three levels of staff development seminars were held across the
Department. In depth training of Department of Health (DH) solicitors,
awareness-raising events for all staff and training seminars for
middle and senior managers. A follow-up session was held for senior
managers in mid-October 2000. DH Branches are now expected to
build into training plans, a continuing programme of staff development
to raise knowledge and understanding of human rights to ensure
that they are able to take practical steps to ensure compatibility
when developing legislation, policy, guidance or procedures. A
staff guide on how to approach assessment of the ECHR in policy
development has been developed. Updated material on the HRA is
available on the electronic intranet for staff and human rights
pointers have been built into the Private Office Guide. A circular
was issued to the NHS and Social Services about their duties under
the Act. A series of dedicated seminars was made available to
NHS senior managers last summer and the HRA is being built into
organisational development of the new Primary Care Trusts. Arrangements
are currently being put into place to support health authorities
and trusts with access to a database on human rights developments.
General material on human rights in health and social care is
available on the DH, Social Care and NHS Internet sites.
2. How has the Act affected the approach
to human rights issues and what have been the consequences both
for policy-formation and for the delivery of services?
Since 1953 the UK Government has been observing
the ECHR. Prior to the introduction of the Human Rights Act, policy
on health and social care and service delivery aimed to reflect
that. Nevertheless we acknowledge that the implementation of the
Human Rights Act provides a significant opportunity to raise awareness
of human rights issues, and promote a human rights culture in
the services. Our approach therefore is to build on best practice
by mainstreaming thinking on human rights within national parameters
and standards for the services. The approach to implementation
continues through quality management and performance assessment
in the NHS and this coincides very well with the modernisation
agenda and the NHS Plan.
Arrangements that were coming into place on
the ground in 1998 are now firmly established and producing good
results. Here are some examples.
Clinical governance is the lynch pin in the
local quality management agenda and is backed by a national framework
of local development programmes and support from the roving National
Clinical Governance Team. The Commission for Health Improvement
(CHI) monitors clinical governance arrangements in each Trust
every three-four years, and also investigates management of services
or incidents. National Service Frameworks (NSFs) set out standards
and models of service to help reduce unnecessary variations in
access and delivery. Mental Health NSF published in 1999; Coronary
Heart Disease in 2000 and NSFs for older people and diabetes are
expected this year. Implementation is monitored by CHI.
The National Institute for Clinical Excellence
(NICE) is well into its work programmes, providing objective appraisals
of new and existing treatments and producing clinical guidance.
NICE has given guidelines on a number of key drugs, including
taxanes for ovarian and breast cancers, so improving their availability
to patients. Implementation of NICE guidelines at Trust level
is monitored by CHI.
Through the NHS Performance Assessment Framework,
all health authorities and trusts have delivery of services assessed
against high level clinical and performance indicators. Traffic
light status decides the level of remedial intervention and scrutiny.
As part of implementing the NHS Plan, a national
system for reporting adverse incidents is being developed. The
Modernisation Agency has been formed to disseminate good practice.
New policy developments in health and social
care are explicit about HRA issues. For example, the Mental Health
White Paper emphasises the need to safeguard human rights in the
development of any new mental health legislation. During 1999
the Mental Health Review Tribunal (MHRT) adjusted its systems
to ensure that cases were listed speedily and reduced backlogs
and waiting times. During 2000 a training strategy that provided
MHRT members with the skills and knowledge to recognise HRA issues
and deal with them appropriately was rolled out. A pack providing
resource materials and guidance was developed by the MHRT Regional
Chairmen and issued to all members ahead of October 2000. Arrangements
for the swift dissemination of judgements and case summaries have
been set up to ensure the Tribunal remains abreast of changes.
The Chief Medical Officer's recent advice on
organ retention, issued at the same time as the Alder Hey Report,
makes specific reference to the HRA, with particular emphasis
on Article 8. However it makes clear that the question of whether
removal, retention and use of tissue from a dead family member
constitutes lack of respect for private and family life has not
yet been determined by the courts.
As promised in the NHS Plan, the Department
is conducting a major review of consent practice with the assistance
of an advisory group involving patients, families and carers as
well as health service professionals. It is anticipated that a
range of guidance and documentation will be issued to support
the consent process throughout 2001 in which the Human Rights
aspects will be fully taken into account.
The modernisation agenda in social care also
affirms the best practice inherent in human rights development.
Human Rights considerations are also part of social care policy
development, for example in the field of learning disability.
A number of national bodies are under development aimed at improving
social care. These include the General Social Care Council which
will also replace the Central Council for Education and Training
in Social Work (CCETSW) and will register Social Care workers
and publish Codes of Practice; the National Care Standards Commission
which will keep a register of care homes; the Social Care Institute
of Excellence, which will identify and disseminate what works
best; and the Training Organisation for Personal Social Services
(TOPSS) which develops care standards including Human Rights issues.
Most care homes are managed by the
private or voluntary sector. The Department, TOPSS, and CCETSW
will drawn attention to the need for all social care providers
to comply with the Human Rights Act.
The Social Services Inspectorate
inspect the quality of local social care services, and as mentioned
at paragraph (1) above, the Inspectorate's standards are built
on human rights-compliant policies.
Circulars are issued every year advising
local authorities of the priorities for spending their allocation
of Training Support Grant, and requiring them to draw up local
training plans. Last year's and the forthcoming circulars include
training for staff in Human Rights Act issues.
TOPSS is working to develop a training
strategy for workers in social services as well as a key skills
framework to identify and fill skills gaps. Standards which make
up the skills framework are being drafted and include HRA issues.
Of 150 social services departments
contacted last Autumn, about half of social services management
teams had discussed the HRA; a further one fifth had reported
to elected members; and the remaining third had also agreed to
an Action Plan.
3. What have been the implications of any
court judgements on human rights matters since the Act came into
There have been very few cases in the DH policy
area that have been decided since implementation and where human
rights points were raised the previous legal position has been
upheld (for example the two recent cases involving patients in
a permanent vegetative stateNHS Trust A v Mrs M and NHS
Trust B v Mrs H  EWHC 29, 25 October 2000). However there
are currently a number of judicial reviews pending in which human
rights points have been taken particularly in the mental health
legislation field. There have been no declarations of incompatibility
to date and no significant changes to practices and procedures
have been made thus far as a result of court rulings, but the
Act has influenced recent policy developments in mental health
and organ retention. There have been two recent judicial reviews
by patients against London MHRTs, about whether hearings were
unlawfully delayed (ex parte C and ex parte A). the judgments
reinforce the tribunal's continuing efforts to arrange hearings
within accepted timescales. There are arrangements in place to
monitor cases involving other Departments which may have implications
for DH as well as those in which DH has a direct interest.
4. What impact has the Act had on everyday
It is difficult to judge how public perception
of individual human rights has affected the way patients and service
users approach health and social services. The growing awareness
of the Act amongst those working in the health and social care
fields in the statutory, voluntary and independent sectors seems
likely to result in more awareness amongst the general public
and service users in particular of its potential relevance. For
example, the Department's Public Enquiry Office is fielding a
lot more calls where people mention human rights. The Constitution
Unit in the Department dealt with about 30 enquiries from the
public (by post, e-mail and telephone) in the six months to January
2001. The revised guidelines Decisions relating to cardiopulmonary
resuscitation issued recently by the British Medical Association,
the Resuscitation Council (UK) and the Royal College of Nursing,
state clearly that policies about these decisions require review
following implementation of the Human Rights Act.
5. How has the duty under section 19 to make
statements of compatibility or non-compatibility with the Convention
in relation to Government bills been addressed and what problems
has this process created?
DH follows Home Office guidance on statement
on compatibility/non-compatibility, and obtains legal advice as
necessary. The Home Office guidance was published in The Human
Rights Act 1998: Guidance for Departments in June 1999 and
is available on the website: http://www.homeoffice.gov.uk/hract.