Joint Committee On Human Rights Seventh Report


The Joint Committee on Human Rights has agreed to the following Report:



. The Committee reports on its further consideration of a number of Government Bills in the light of communications from the Government, publishes its initial correspondence with Ministers on the Sexual Offences Bill, draws the attention of each House to the human rights implications of the Patient (Assisted Dying) Bill (a private Member's Bill in the House of Lords), and reports its view that several Government Bills and Private Members' Bills do not raise human rights considerations requiring to be drawn to the attention of either House at this time.


1. Since our last Scrutiny of Bills report, we have given further consideration to the following Government Bills in the light of correspondence with the Government—

  • Hunting Bill;

  • Criminal Justice Bill;

  • Licensing Bill;

  • Crime (International Co-operation) Bill.

We have also given initial consideration to—

  • Consolidated Fund (No. 2) Bill;

  • Northern Ireland Assembly Elections Bill;

  • Sexual Offences Bill;

  • Water Bill.

We report on all these Bills in paragraphs 3-43, below.

2. In addition, we have considered a number of Private Members' Bills. We report our views on their human rights implications in paragraphs 44-62, below.

Government Bills already reported on: further consideration

Community Care (Delayed Discharges etc.) Bill

3. The Bill would require a social services authority to assess a patient if an NHS body has notified the social services authority that a hospital patient receiving treatment of a type to be prescribed by regulations cannot be discharged safely unless community care facilities were provided. If, following an assessment, it is established that the patient would need particular community care facilities and cannot safely be discharged without those facilities being available, but the social services authority fails to provide those services, the social services authority would have to make a 'delayed discharge payment' to the NHS body.

4. We originally reported that we did not consider that the Bill gave rise to a significant risk of incompatibility with Convention rights.[1] Subsequently a letter from Age Concern raised a number of issues about the Bill.[2] Some of these had already been considered, but one, relating to the effect on the patient's freedom to refuse assessment or the provision of facilities and to insist on being discharged, raised a new question in relation to ECHR Article 8. Our Chair accordingly wrote to the Minister of State at the Department of Health, Jacqui Smith M.P., asking for the Government's view of the suggestion that—

  • the duty of NHS bodies under clause 2 to notify social services authorities of qualifying patients, without the patients' consent; and

  • the duty of social services authorities to conduct an assessment of patients' needs, even if they are unwilling to accept assistance and only want to discharge themselves,

might be incompatible with the rights of the patients to respect for their private life under ECHR Article 8.[3]

5. In her reply, by letter dated 24 February 2003, the Minister made a number of points.[4]

  • The Government is considering an amendment to clause 2 of the Bill to make explicit the need for the NHS body to consult patients and, where appropriate, carers before notifying a social services authority.

  • Patients and their carers will continue to have the right to decide whether or not to participate in an assessment, and to refuse either NHS treatment or social services assistance.

  • If a patient does not need social services assistance (for example, because he or she has plans to obtain any necessary support from other sources), clause 2 would not permit the NHS body to notify the social services authority. Clause 2 applies only where the NHS body has some reason to think that the patient could not be safely discharged without assistance from community care services.

  • Draft regulations, to be made under clause 3(8) to govern the giving of notice under clause 2, have been published for consultation. (The draft regulations are attached to the Minister's letter.) These are said to make it clear that the notice would not contain any confidential or sensitive personal information, or any information about the patient's medical condition. (In fact, we note that the draft only specifies the information which is to be included in the notice; it does not expressly provide that no other information may be included: see draft regulation 4(3).)

  • In some circumstances, the Bill would protect the rights of patients under ECHR Articles 2 (right to life) and 3 (right to be free of inhuman or degrading treatment). It would avoid a situation in which a patient might be discharged into life-threatening conditions because pride or embarrassment cause him or her to refuse support. Articles 2 and 3 impose positive obligations on public authorities, and the Bill would require NHS bodies and social services authorities to take those obligations seriously.

  • The patient and any carer are under no obligation to co-operate with an assessment, or to admit social workers to their homes. If they do not co-operate, the social services authority will be likely to conclude that only minimal community care facilities are necessary.

  • The patient, if mentally competent, would also be free to refuse any services that might be offered. The State would have no duty to force safety measures on a competent adult who wishes to discharge himself or herself, even if it is likely to result in the patient's death. This is the effect of the patient's right to autonomy of decision-making both at common law and under Articles 2 and 8 of the ECHR.[5]

6. For these reasons, the Government considers that the Bill does not engage rights under ECHR Article 8.1.

7. We do not agree that the Bill does not engage rights under Article 8.1. It seems to us that Article 8.1 is engaged whenever a public authority undertakes in inquiry into, or interferes with, a person's private life.

8. However, the factors set out above are highly relevant to a different question: is any interference with Article 8.1 justified under Article 8.2? In relation to the question of justification, the Government relies both on the factors listed above, and on a further assessment as to the pressing social need for, and proportionality of, any interference with the right under Article 8.1. In this connection, the Government suggests that—

  • any interference with Article 8.1 rights is likely to be relatively minimal, compared to the difficulties which would be caused if a patient were given a right to refuse to consent to a notice being given under clause 2 or an assessment being made under clause 3;

  • measures to alleviate delayed discharges from hospitals are important, because delays are detrimental to the patients themselves, increasing the risk of hospital infection and loss of independence. Delays are also detrimental to the efficient running of the health service.

9. The Government therefore argues that the measures can be justified as necessary for the protection of health and, to a certain extent, the economic well-being of the country under ECHR Article 8.2.[6]

10. We accept—

  • that the measures are calculated to advance a legitimate aim for the purposes of Article 8.2, namely the protection of the health of people who are denied beds in hospitals because of delayed discharge of existing patients;

  • that there is a pressing social need to address the problem; and

  • that arranging for timely assessment of the needs of certain hospital patients, and for those needs to be met through community care, could contribute to reducing the problem.

11. We are less convinced that the measures proposed can be relied on to achieve the result in the way that interferes as little as possible with the rights of patients and carers to respect for private life. In relation to the disclosure of personal information, the Government's response fails to recognize that, whatever information is contained in the notice by the NHS body to the social services authority, the assessment by the social services authority will inevitably depend, in part at least, on information about the patient's medical condition. Without that, it will be impossible to assess the risks to the patient's safety and the patient's resultant needs. If the patient refuses to co-operate with the social services authority, the authority seems to us to be more rather than less likely to seek the information it needs from the NHS body. There will be a natural temptation for the NHS body to provide the information in order to increase the chance of being able to discharge the patient safely. This could lead to circumstances in which the disclosure is made without the patient's consent in circumstances requiring special justification if it is to be proportionate, so as to be justifiable under ECHR Article 8.2. It needs to be borne in mind that disclosing medical information about a person for any reason always requires particularly strong justification if it is to satisfy the test of proportionality under ECHR Article 8.2, because of the special sensitivity of such information.[7]

12. If a patient refuses to co-operate with an assessment and wants to take the risk of going home without an assessment, the hospital could not lawfully stop the patient discharging himself or herself. On the other hand, if the patient does not want to leave the hospital, perhaps because he or she has become institutionalized (which can take only a short time, especially when a patient is physically dependent), the patient's refusal to co-operate could effectively prevent the hospital from ever discharging the patient, bearing in mind the hospital's duty of care towards the patient at common law and under ECHR Articles 2 (the right to life) and 3 (the right to be free of inhuman or degrading treatment).

13. We accept that in some circumstances this might justify a hospital in making the disclosure to a social services authority without the patient's consent, if appropriate procedures were established in the hospital for assessing the need for the disclosure in the circumstances of each case. However, the absence of an appropriate procedure for deciding whether or not to disclose sensitive personal information may lead to the disclosure being regarded as unjustifiable under ECHR Article 8.2.[8] We note that the Bill does not provide for any particular procedure to be followed within a hospital to ensure that various competing rights and interests are properly balanced, as required by ECHR Article 8.2, before the NHS body makes a disclosure without the patient's consent. Administering such a procedure might be the responsibility of the data protection officer appointed by the NHS body for the purposes of the Data Protection Act 1998.

14. Accordingly, we recommend that the Bill should be amended to include on the face of the Bill a requirement for NHS bodies to adopt an appropriate procedure for balancing the rights and interests affected, as required by ECHR Article 8.2.

1   Joint Committee on Human Rights, Third Report of 2002-03, HL Paper 41, HC 375, pp 21-13, paras 49-58 Back

2   Reproduced as an appendix to this Report, Ev 1-2 Back

3   Reproduced as an appendix to this Report, Ev 2-3 Back

4   Reproduced as an appendix to this Report, Ev 3-5 Back

5   St. George's Healthcare NHS Trust v. S. [1999] Fam. 26, CA; Pretty v. United Kingdom, Eur. Ct. H.R., App. No. 2346/02, judgment of 29 April 2002, at § 61 Back

6   See the Minister's letter, paras 12-13, Ev 5 Back

7   See e.g. Z. v. Finland, Eur. Ct. H.R., judgment of 25 February 1997, RJD 1997-I, 25 EHRR 371 Back

8   See e.g. Gaskin v. United Kingdom, Eur. Ct. H.R., Series A, No. 160, judgment of 7 July 1989, 12 EHRR 36 Back

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