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
afterthis 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
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
(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 bethis 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