Joint Committee On Human Rights Sixth Report


7.1 Supervision of health care organisations and human rights

  We have discussed in section three above, the problems experienced in mainstreaming human rights in the DoH and core agencies such as the NHS Litigation Authority and Commission for Health Improvement. These problems have had an undoubted impact on the manner in which health organisations first addressed and have since largely failed to come to terms with the implications of the HRA. The DoH guidance (HSC2000/25), issued in July 2000, established no system or mechanisms for health organisations to address the implications of the HRA and no arrangements were made to monitor what progress was made in this regard. Without such steps and any reinforcement of the message, the department's guidance has not had a major impact on health organisations. At this time, given the scale of the NHS change agenda and the many competing demands on the time of busy NHS executives, implementing the HRA carries a very low priority in most health organisations. 16

  Since October 2002, health organisations (hospital and primary care trusts) have been supervised by strategic health authorities reporting in turn to regional directorates in the DoH. Human rights have no place in this structure. The performance management frameworks used by the strategic health authorities to oversee hospital and primary care trusts include racial equality indicators but not human rights indicators (and there are no plans to add the latter). At the strategic level, there is a marked difference to be found in the treatment of human rights and race equality matters. For example, in London, a dedicated Race Equality Group formed by the five London strategic health authorities reports to the relevant directorate of the DoH and is actively engaged in appraising the quality of the race equality schemes prepared by London health organisations. Each trust has been given a one page assessment of the steps to be taken to implement its race equality scheme and progress will be monitored through the performance management framework. Further, all committee and board papers are now required to have a specific section addressing racial equality implications. By comparison, human rights are not covered by the performance management framework, there is no dedicated "human rights" group, no requirement to report progress in this area and no requirement to address human rights implications in committee and board papers. The influence of human rights on the work of health organisations is correspondingly small.

7.2 Health care organisations and the Human Rights Act

  We have already noted how, during the course of 2001, District Audit surveyed how some 88 local government and health organisations were implementing the Human Rights Act. The size of the health sample is not known but the findings published in May 2002 revealed that:

    —  52 per cent of health bodies had gone to considerable lengths while 42 per cent had taken no action to raise awareness of the implications of the HRA for their work;

    —  65 per cent had no clear corporate approach to responding to the HRA;

    —  61 per cent had taken no action to assess policies and practices for compliance with the HRA; and

    —  only 29 per cent of health bodies had put in place a mechanism for keeping abreast of developments concerning human rights.

District Audit observed:

    "Overall we found that health bodies are not as well prepared as local government. Existing trusts are leaving themselves vulnerable to risk and new Primary care trusts have to meet the challenge of establishing policies and procedures that are compliant." 17

  In September 2001, the Constitution Unit, University College London conducted a straw poll of some 34 health organisations in England and Wales (not all still in existence) to try to establish what information needs they might have in regard to human rights and the Human Rights Act.

  It proved very difficult to engage with the bodies contacted given their work pressures, other prevailing priorities and the major restructuring exercise underway within the health service. Few of these bodies had an identified contact point for human rights matters. Requests put to the Board Administrator/Trust Secretary (or equivalent) who screened business for the Board of Directors normally led to a referral to the Human Resources Director or Training Manager. Human rights were not an issue on which to win the attention of such busy people. The handful that could be contacted disclosed little knowledge of the Human Rights Act and human rights matters.

  Of 10 health authorities approached, five responded. All five had included the introduction of the HRA as an item at least one board meeting with a supporting briefing paper. Two had obtained information from legal practitioners off the internet. Two had conducted and one planned to offer training on the HRA by their legal teams. Three had hosted seminars delivered by a commercial law firm. Of the nine Primary Care trusts approached, five had received human rights training (provided by outside legal practitioners). Only one was interested in taking this work further. Training on human rights matters, where held, was mainly restricted to board and senior management and rarely extended to front line staff. Of 15 acute Trusts, eight had little or no knowledge of the HRA. Outside law firms had conducted seminars for some of the other seven trusts.

  Health organisations are included among the 40-50 bodies being examined as part the District Audit's latest cycle of human rights audits. A key feature of these "Human Rights Management Arrangements Diagnostic's" is the conduct of interviews with members of staff as well as a survey of staff across the organisation. This audit process is confidential but aggregated results will be published later this year. Among the good practice examples identified have been health organisations which have Board approved and costed action plans and timetables for reviewing policies and procedures together with the commissioning human rights training and newsletters. Some good practice organisations have also used the need to prepare for the Race Relations (Amendment) Act as an opportunity to review personnel policies and practices for compliance with the HRA. Some have undertaken assessments to identify contracts where there is a risk of legal challenge and then introduced clauses into these contracts setting out the contractor's obligations to comply with the HRA. But there are also health organisations (and perhaps the majority) where little has or is being done to implement the HRA. In these organisations, the implications of the HRA have still not been addressed as a governance issue, policies and practices have not been audited for compliance with the Act, there is no corporate "human rights" policy and no designated "human rights" official. No arrangements exist for obtaining up to date information on human rights issues or case law. No arrangements are in place for ensuring that external contractors comply with the HRA. Levels of awareness among staff of the implications of the HRA remain low and training, where provided, has been conducted on an ad hoc manner with no recent reinforcement. In these organisations, response rates as low as 3 per cent have been recorded for health care staff who consider that they have received adequate information on the HRA. More positively, however, the audit process for these organisations also reveals high levels of awareness among clinical staff concerning specific human rights issues (such as the right to life and avoiding degrading treatment) where such implications have been taken on board in clinical guidance and practice (provided by the relevant professional bodies such as the BMA and GMC).

  It would seem that in the health care sector, therefore, evidence of best practice and compliance with the HRA is not to be found in organisational practice but in the clinical practice of health care professionals. It may also be observed, that while health care lawyers are undoubtedly aware of their organisations' obligations to comply with the HRA they do not appear to exercise a formal institutional role in this regard as seen in local government. In local government, the legal section/department is invariably the recognised home for human rights. This is not apparently the case in health organisations.

  What has not been found in either organisational or clinical practice is a clear sense of a human rights culture or approach for the provision of health care. However, there is a strong ethical basis to the provision of health care and evidence of human rights being a facet of patient care and medical ethics.

7.3 Clinical Guidance and Human Rights

  Health care involves many sensitive issues of an ethical and human rights nature. For example, the "right to life" established under Article 2 of the ECHR figured prominently in early court decisions under the Human Rights Act concerning the provision or withholding of life prolonging treatment. It also became an important part of the long running debate over when the use of "do not resuscitate" notices was appropriate and what steps should be taken to involve patients and close relatives in such decisions.

  The provision of guidance on such matters requires a deep understanding of the clinical issues. This has long been a function of the professional medical bodies. They have taken care to address the implications of the Human Rights Act in the guidance they provide on these issues. For example, in January 2002, the British Medical Association, the Resuscitation Council (UK) and the Royal College of Nursing issued a joint statement on "Decisions relating to cardiopulmonary resuscitation" which expressly covered the impact of Convention rights on such decisions. The BMA has also:

    —  produced a general guide on the "Impact of the Human Rights Act 1998 on medical decision taking" in October 2000;

    —  revised its guide on "Withholding and withdrawing life-prolonging medical treatment: guidance for decision making" (2001) to take account of the HRA; and

    —  considered the impact of the HRA in the report and toolkit prepared by its Consent Working Group. 18

  BMA guidance is distributed to all health organisations.

  The General Medical Council is another body which has produced guidance on "Withholding and withdrawing life-prolonging treatments: Good Practice in decision making" (August 2002) which considers the implications of the HRA and ECHR. 19

  These are known sources of information for health care professionals and clearly one of the most effective methods (together with high profile litigation) of establishing a human rights dimension on such issues within the health care sector.

  This does not mean that policies and practices on the provision and withholding of life prolonging treatment in every hospital now comply with the HRA and ECHR. Apart from the work of District Audit, the Disability Rights Commission has identified cause for concern over the apparent use of "Do Not Resuscitate" notices for some disabled people receiving hospital treatment without the knowledge of the patient or their close relatives. The Commission has also examined the results of clinical governance reviews undertaken by the Commission for Health Improvement for a sample of 19 NHS hospital trusts. These reviews revealed that three trusts had a policy on DNR, three trusts were reviewing or planned to review their policy, three trusts had detailed policy and practice guidelines and reports on the other ten disclosed concerns, some serious. Having guidance in place was not a guarantee that this would be acted upon by staff. According to the DRC, a resuscitation audit in two hospitals found that correct documentation of DNR status existed for only 23 per cent of patients and for only 10 per cent of those identified as "Not for CPR". A survey by students at one hospital found that just over half its doctors had read the Trust's guidelines. 20

  In such an environment, the possibility of Convention related challenges on the provision or withholding of life prolonging treatment must remain high. The DRC also intends to conduct a formal inquiry into resuscitation practices as applied to disabled people.

7.4 Human rights guidance

  Health trust administrators, when contacted by the Constitution Unit, were looking for an easy to read guide to the Convention articles most likely to affect health services which could be used as a briefing paper for Board officials and as a briefing tool for senior management to inform their staff. They wanted it to focus on current concerns of the health care sector (eg rationing of care) and to be able to be updated and linked to other sources. Primary care trusts sought a similar briefing paper but with more of a focus on the implications of the HRA for the commissioning of health services (contracts and service delivery agreements). As many NHS staff did not have easy access to the internet in the workplace, the information needed to be available in printed form.

  Human rights guidance for the health care sector is available. Apart from the brief introduction provided by the DoH and the on line service promised by the NHS Litigation Authority, human rights implications have been covered in a number of medical books, journals and websites. The clinical guidance provided by the BMA and GMC offers some of the best examples of human rights considerations being applied to core functions to be found in any area of public activity. More general guidance has also been provided for nurses by the Royal College of Nursing. In addition to the many expensive case review services aimed mainly at lawyers, some more modestly priced subscription services also exist which offer practical guidance on human rights matters for health and social care providers. 21 Commercial law firms specialising in health litigation, such as Capsticks, have been particularly active. Since 2000, Capsticks (the main source of legal advice for health organisations in the south of England) has conducted seminars for around 100 health organisations who were regular users of their services. Most of these seminars were for Board members except in mental health services where front line doctors and nurses also attended. Capsticks also maintains a website—including a section entitled "NHS Online" which provides guidance on litigation issues and covers human rights matters.

  It is noticeable that most of the above guidance is directed at the individual health care practitioner and that there is not the same attention given to meeting human rights obligations on an institutional basis as found in other areas of public activity. There appears to be no "toolkit" on the market advising health care organisations how to comply with the HRA. This might be both a cause and effect of the failure to address human rights at the organisational level in the health care field.

7.5 A Human Rights Commission and health care

  A Human Rights Commission could not by itself cause the health care sector to address its human rights obligations. Flaws in the mainstreaming process, for example, have to be resolved by internal action within the DoH. As an external force, however, a HRC could press for institutional reforms to revive mainstreaming and to have human rights indicators included in the strategic health authorities' performance management frameworks for health organisations. Such steps would help to gain a recognised status for human rights in the health care sector which will not develop under the present arrangements.

  A Human Rights Commission would not have the means and resources to work directly with individual health trusts. However, the experience of the other equality commissions suggests that a Human Rights Commission could work effectively with and through the DoH and existing regulatory bodies such as District Audit and the Commission for Health Improvement. The CRE, for example, has co-operated in a successful manner with the department over the introduction of the race equality schemes with two departmental officials seconded to the commission to prepare guidance for the health care sector. The CRE has also prevailed upon the CHI to address race equality issues as part of its clinical governance reviews in order to meet the CHI's obligations under the Race Relations (Amendment) Act. For the current review exercise covering Primary Care Trusts, some 20 per cent of these trusts are being asked by the CHI for evidence of the steps they are taking to implement their race equality schemes. There are no plans or pressure to introduce similar steps for human rights. This is a reflection of a fundamental difference in the way in which health organisations and professionals grasp human rights and race equality matters. There is a much stronger understanding of the need to tackle racial discrimination in the health care sector which has been translated into action in policy development, decision making and service delivery. To an extent this is simply because health care professionals and organisations have more understanding and experience of race equality matters. Race discrimination is an issue they can identify with and see the need to tackle. However, this realisation also extends from the manner in which race equality issues have been brought before the health care sector. The existence of an external driving force in the form of the CRE with a specific mandate and the tools (race equality scheme) to pursue the racial equality agenda makes a marked difference. By comparison, human rights are new, poorly understood, have no focal point and no driving force. No existing agency working within the health care sector shows any prospect of picking up this mantle. Only a human rights commission would be likely to address these gaps.

  A human rights commission would not appear to need to fill any significant holes in the provision of guidance concerning the application of the HRA to health care matters. Its knowledge base on health aspects would be very unlikely to exceed that of the BMA and GMC. There would be benefits, however, to be gained from a HRC acting as a repository and signpost for what, at present, are widely scattered sources of information. It might also address questions of organisational best practice.

  A human rights commission with teeth could emulate the Disability Rights Commission in conducting inquiries into areas of concern within the health care sector (including areas of concern already identified by the JCHR such as mental health). It would have a potential role in litigation—something welcomed by one commercial law firm working with health organisations if this would also provide a filtering mechanism eliminating time and expense on cases and human rights arguments that had no prospect of success.

  Above all, a human rights commission could take on the task of convincing a busy and stressed health care sector that human rights were important and something to be embraced in every area of activity.

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 26 March 2003