Joint Committee On Human Rights Seventh Report

3.Letter from Jacqui Smith MP, Minister of State, Department of Health


Thank you for your letter of 12 February, raising some further issues on this Bill following a letter you had received from Age Concern.

Firstly, I would like to point out that during the Lord's Committee stage on this Bill we gave a commitment to consider a government amendment that would make explicit the requirement for the NHS to consult patients and, when appropriate, carers, before notifying social services that the patient is likely to need community care services following discharge from hospital. I believe this will go a long way to address the points raised in your letter.

Secondly, the Bill does not change or undermine any existing rights patients and their carers have to participate (or not) in assessment or to refuse either NHS treatment or social services.

In our view, the duty in clause 2(2) is not absolute. The NHS body is under a duty to give notice of the qualifying patient's case in circumstances where it appears to the NHS body that it will be unlikely to be safe to discharge the patient without there being one or more community care services in place. Obviously consulting with the patient will be a key step for the NHS, to learn whether the patient has alternative care services already in place (for example from a family member) and hence is not likely to need care services from social services. Alternatively this could be a point at which the patient says that they do not want social services involved and will make their own arrangements for after care. At this point the NHS would need to be sure that this would happen, before they decided not to notify social services, since the test for the NHS is that the patient can be safely discharged with out community care services.

In the Department's view, there are two points here. The first is that the NHS body will have to have some grounds on which to base their view that the patient is likely to need community care services. If it is clear to the NHS body that the patient does not need any social services, because his family will care for him upon discharge or for some other reason, then clause 2 does not apply (see subsection (1)), and the NHS body will not give the notice in the first place.

The second point is that draft regulations have been published for consultation [copies attached for the Committee's information], and these make it clear that the notice will not contain any confidential or sensitive personal information, or indeed any information about the patient's medical condition. The notice will contain only the patient's name, the name of the hospital in which the patient is receiving treatment, the name of the NHS contact responsible for the patient's discharge arrangements, the patient's admission date or expected admission date if not yet admitted, and the potential discharge date if known.

On these grounds, it is the Department's view that clause 2(2) does not engage Article 8. Nothing on the face of the Bill is incompatible with Article 8, and the regulations will not contain anything that would mean such a notice would be in breach of that Convention Right. Indeed, in our view, the clause seeks to safeguard the position of the patients in relation to their rights under articles 2 and 3. We are aware of cases where for reasons of pride or embarrassment an elderly person may insist that he or she is perfectly fine to go home without support, when in fact it would be unsafe to discharge him or her without support of some kind. Clause 2(2) requires the NHS body to take seriously its obligations as a public authority, and take steps to assure itself that it will be safe to discharge a person without recourse to social services.

Further, it is our view that requiring the local social services authority to carry out an assessment if it receives a notice under section 2 from an NHS body also does not engage Article 8. The patient is under no obligation to co-operate with an assessment, and may of course refuse to answer any questions or to allow a social worker to enter his or her home. Carers and family members are equally able to refuse to co-operate. If the patient refuses to co-operate the social services authority must carry out what assessment of the patient's needs it can, based on what little information is available to it. Such an assessment is likely to be minimal, and any decision as to what services the authority will provide to meet those needs is also likely to be minimal, that is, the services which it feels it can legitimately offer will likely be few, or even none. It is at the stage of offering to provide services that the patient's right to refuse consent will primarily come into play. Of course the patient has a right to refuse consent to receiving any services. If the social services were to attempt to provide services against the will of the patient, it would at best constitute a civil trespass, and at worst a criminal offence.

Given that the obligation to carry out at least a cursory assessment will in no way involve the forced participation of the patient, it is again the Department's view that Article 8 is not engaged. Neither of the duties in clauses 2(2) or 3(3)(a) will involve an attempt to force a patient to receive assistance, and any assessment which is undertaken without the co-operation or participation of the patient will perforce be very minimal and will not involve social services in the personal affairs of the patient.

Although we do not believe that the patient's rights under Article 8 are likely to be engaged by these provisions, if the JCHR disagree, then the Department would argue that the interference is justified under Article 8.2.

So in answer to the committee's first question "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?" our response is:

The provisions in clauses 2 and 3 of the Bill are proportionate, because insofar as they do represent any interference to an individual's right under Article 8.1, that interference is at a relatively minimal level, compared to the difficulties to which the system would be subject were the patient to be given a right to withhold consent to the notice being given under clause 2 or any kind of assessment being carried out under clause 3.

In our view, the level of interference is justified, as it is necessary for provision to be made to alleviate the problem of patients whose discharge from hospital is delayed. Such delays are detrimental to the patients themselves, with regard to issues such as risk of hospital infection, and particularly where elderly patients are concerned, loss of independence. The delays are further detrimental to those persons in the community who are waiting for hospital treatment. Lastly, the delays are detrimental to the efficient running of the health service overall. We would argue that, given the relatively minor level of interference, these measures are indeed necessary in a democratic society in the interests of the protection of health, the protection of the rights and freedoms of others, and to a certain extent, the economic well-being of the country.

In answer to the committee's second question as to "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 given 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?" our response is:

As will be clear from what we have said above, in our view these two clauses do not violate ECHR Article 8, either because it is not engaged, or because any interference is justified. Neither of the duties set out in the clauses prevents the patient at any time from simply discharging himself or herself. Indeed under the regulations, the duties set out in the Bill can be brought to an end upon the happening of such an event. What the Bill aims to do is to put in place a system whereby a patient does not stay in hospital where the NHS and a local authority, following assessment in which the patient and their carers are involved, decide that a person's needs are for community health and social care services. Once those services are in place, the services of the acute hospital can be withdrawn.

I hope that this explanation, together with the intended government amendment to clause 2, demonstrates a balance between the patient being able at any stage to refuse either NHS or social services, if they wish to discharge themselves; and the NHS needing to satisfy itself that it is discharging its responsibility to ensure that the patient is offered the ongoing care needed for a safe discharge.

24 February 2003

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