Joint Committee On Human Rights First Report


10. LETTER FROM PAUL BURSTOW MP, LIBERAL DEMOCRAT SHADOW MINISTER FOR OLDER PEOPLE, TO THE CHAIRMAN

I am writing to ask whether the joint Committee on Human Rights will take the opportunity to look at the draft Community Care (Delayed Discharges. etc) Bill, regarding issues of potential incompatibility with the Human Rights Act 1998.

The Human Rights Act makes it unlawful for the Government to legislate incompatibly with ECHR; one must remember that it is also the state's positive obligation to ensure that draftsmen construct legislation is such a way that convention rights are secured (article 1). Many of the lobby groups believe that this legislation falls well short of this benchmark, despite the Minister having signed a declaration of compatibility.

Article 2/3 - Right to life/freedom from inhuman and degrading treatment.

The lack of adequate safeguards to ensure against a patient being discharged when they are not in a fit condition raises the possibility of putting patients life at risk by premature discharge. Bundling a very vulnerable, sick person into the back of a minibus to meet targets under a statutory delayed discharge policy may likewise raise issues under article 3.

Article 6 - Right to a fair and impartial hearing

Section 6 of the draft Bill discusses disputes between local authorities and NHS bodies over who is responsible for the patient. The proposed dispute panels appear to be a new form of administrative tribunal, and therefore subject to article 6 rights Salesi v Italy. How long will this process take place? What will happen to the patient in the meantime? How will the panel's independence be ensured? Leaving the issue of the panel's form and jurisdiction to regulation is surely inadequate in view of article 6.

Article 8 - Right to private and family life

Delayed Discharge period

The patient has now to make a major decision as to where one is going to live for the rest of ones life, within three days. Whatever is said about the patient being able to move on after—this that is going to be the reality of the situation for vast numbers of disabled people. The Cough lan case makes it clear that decisions of this type can engage article 8.

Strain on Carers

(i)  The bill fails to provide for procedures which will support and include carers in consulting upon discharge; although the Hospital Discharge Workbook, which sets out good practice, is being updated, it is unlikely, that this will provide carers with the protection that they need because it lacks the force of law; carers are likely to be forced to take home their relatives/partners prematurely.

(ii) The Government is proposing to exempt disabled people from charges for intermediate care, but keep the power to charge carers; the impact of the current drafting would mean that for an identical service, a carer would be charged where a disabled or older person would not be—this form of discrimination in law between patients and carers rights, although not placing any extra burden on carers, might be covered within article 8 due to its disproportionate impact on families.

I intend to raise these issues during debate and committee stages; however the question of whether these issues fall within the state's 'margin of appreciation', would surely be a matter for your Committee to consider.

27 November 2002



 
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