Joint Committee On Human Rights Seventh Report

2.Letter from the Chairman to Jacqui Smith MP, Minister of State,

Department of Health


As you know, the Committee reported on aspects of the human rights implications of the Bill in its Third Report of 200l-02. Since then, a letter from Age Concern has raised further concerns. The Committee is considering whether to report further on the Bill in the light of that. It would be grateful for your answers to the following questions.

Clause 2(2) of the Bill would impose an absolute duty on the responsible NHS body to give notice of a qualifying patient's case to the social services authority for the area in which the patient is ordinarily resident. Although the form and contents of the notice has not yet been prescribed (see clause 2(4)), it is likely to contain confidential information about the patient's medical condition. Passing such information between authorities engages the right of the patient to respect for private life under ECHR Article 8.1. The European Court of Human Rights has recognized that personal health records and related information is particularly sensitive, and requires special protection under Article 8. However, the duty under clause 2(2) of the Bill is not limited to cases in which the patient consents to notice being given, and does not exclude cases in which the patient wants to discharge himself or herself from hospital without social services involvement or has indicated that he or she would refuse assistance from social services were it to be offered.

Where a notice has been given and has not ceased to have effect, clause 3(3)(a) of the Bill would impose an absolute duty on the social services authority to carry out an assessment of the patient's needs, even if the patient objects or has indicated that he or she would refuse assistance from social services were it to be offered. Assessing the patient's needs sometimes necessitates interviewing the patient and any potential carer about personal matters, and visiting the patient's home. These steps would engage the right of the patient and of the carer and/or cohabitant to respect for private life and the home, and in some cases would also engage the right to respect for family life, under ECHR Article 8.1. There is no exception under the Bill for cases in which the patient or a cohabitant refuses to allow a social worker to enter his or her home, or refuses to be interviewed, or wants to be discharged and to go home and is prepared to waive any liability on the part of the NHS body and the social services authority.

An interference with a right under ECHR Article 8.1 might be justifiable under Article 8.2 if it could be shown to be in accordance with the law and necessary in a democratic society for one if the purposes listed in Article 8.2. The Bill would be likely to provide a sufficient legal basis to allow the interference to be regarded as being in accordance with the law. In many cases, the purpose of the interference would be to protect the rights of the patient, particularly the right to life and the right be free of degrading treatment which might be threatened as a result of being discharged into an unsafe environment. However, it is not clear that the Bill as currently drafted would ensure that the performance of the duties under clauses 2 and 3 would be 'necessary in a democratic society' for that purpose. As you know, a measure is 'necessary in a democratic society', within the meaning of Article 8, only if there is a pressing social need for it in order to pursue one of the legitimate aims under Article 8.2, and the interference with the right is proportionate to the legitimate object pursued. To be proportionate, it must be possible to say that other less invasive methods are unlikely to be successful, the nature and extent of the interference must not be excessive having regard to the legitimate object pursued, and the measure must not deprive the patient of the essence of the right under Article 8.1.

Clauses 2 and 3 do not allow the NHS body or the social services authority to take account of the patient's wishes when deciding whether to give notice under clause 2(2) or take the steps necessary to conduct an assessment for the purposes of clause 3(3). In particular, it could lead to an attempt to force a patient, who wants to go home and has sufficient independence of mind to want to avoid social services involvement in his or her affairs, to undergo assessment and/or to receive assistance.

The Committee would therefore be grateful for your response to the following questions—

Why does the Government consider that this provision would be likely to be a proportionate response to a pressing social need to advance a legitimate aim within the meaning of the term 'necessary in a democratic society' in ECHR Article 8.2?

Whether in your view it would be possible to amend clauses 2 and 3 to avoid any risk of a violation of ECHR Article 8, by preventing NHS bodies and social services authorities being placed under a duty to give notifications and conduct assessments against the will of the patients who are the subjects of the notifications and assessments, particularly in cases where the patient is keen to discharge himself or herself?

The Committee would be grateful for a response by 25 February.

12 February 2003

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