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Older People’s Rights (Health Care)

Volume 473: debated on Thursday 13 March 2008

[Relevant documents: Eighteenth Report from the Joint Committee on Human Rights Session 2006-07 HC 378 and the Government’s Response Session 2007-08 HC 72]

Motion made, and Question proposed, That the sitting be now adjourned.—[Siobhain McDonagh.]

As Chair of the Joint Committee on Human Rights, I am grateful to have the opportunity to introduce the debate on our report on older people in health care,.

It is sometimes argued—by politicians who should know better, and by the tabloid press—that human rights exist only to protect unpopular minority groups in society such as criminals, suspected terrorists and asylum seekers. Human rights, they proclaim, are nothing to do with ordinary people, but that argument is a travesty of the truth.

Human rights apply to us all. They are not just for those people on the fringes of society for whom public sympathy is low or non-existent. Vulnerable people in the mainstream are in real need of the protection of human rights law. For example, older people in hospitals and residential care homes, the subject of our report, need such protection.

There is a growing recognition among pensioners that human rights are vital to their well-being. That explains the enormous outcry over the consequences of the YL case, to which I shall refer later, as its outcome has deprived older people of protection in private and voluntary-sector care homes. My Committee’s work rightly embraces the universality of human rights by examining and reporting on popular and unpopular causes alike. To illustrate that universality of human rights, we could not have chosen a better example than the one that we are debating this afternoon.

The numbers of older people—inevitably the main users of the NHS—are growing. Some 80 per cent. of NHS resources and 80 per cent. of staff time are devoted to the over-65s. Two thirds of general and acute hospital beds are occupied by people aged 65 and over but, as the British Institute of Human Rights has made clear, the human rights of older people are particularly invisible in society. So we decided to bring the human rights of older people in health care into the political spotlight and, by illuminating the respect—or lack of it—for those rights, to make their cause visible to all. Victimisation or neglect of older people in health care raises any number of serious human rights issues.

We heard about, and saw, a lot of good practice, and our visit to Edgware hospital in my constituency is an example of that. In care homes, we met staff with low status and poor pay who were really committed to looking after the people in their charge. However, although 79 per cent. of care homes meet the minimum standards, that means that 21 per cent. do not.

Depressingly, but not surprisingly, we received an overwhelming volume of evidence about the problems that exist from staff working for the various inspectorates, service providers and non-governmental organisations. We were told about malnutrition and dehydration; abuse and rough treatment; lack of privacy in mixed sex wards; lack of dignity and respect for confidentiality; neglect, carelessness and poor hygiene; inappropriate medication and use of physical restraint; inadequate assessment of a person's needs; too hasty a discharge from hospital; bullying, patronising and infantilising attitudes towards older people; age discrimination; communication difficulties; fear of making complaints, and eviction from care homes. All those things are human rights issues that can infringe the European convention on human rights and the Human Rights Act 1998.

Abuse of the elderly can be psychological, physical, financial or sexual. According to Age Concern, half a million people in the UK suffer abuse. Some 23 per cent. of reports to Action on Elder Abuse’s helpline relate to abuse in care homes, and 5 per cent. to abuse in hospitals. In our view, elder abuse is a serious and severe human rights issue. It is perpetrated on vulnerable older people who often depend for their care on the very people who abuse them.

Elder abuse is not just a betrayal of trust—it can also amount to a criminal offence. We heard of an 80-year-old lady who was sexually assaulted, yet no action was taken. Criminality is downgraded by being classed as abuse. We also identified that as a problem in our recent report on the human rights of adults with learning disabilities. If a person is the victim of a serious crime, that crime should be treated as such and not trivialised because of the vulnerability of the victim.

I turn now to neglect and carelessness. The Committee heard examples of death arising from poor hygiene, and about problems with personal care, such as people being left in their own waste. We heard of one patient who asked for a urine bottle for one and a half hours, only for his relatives to be told, “It doesn’t matter if he wets the bed, we’ll change the sheets.” Where is the dignity there?

Patients were moved for non-clinical reasons, sometimes at night. Older people’s spectacles, false teeth or hearing aids were thoughtlessly left out of their reach by staff. Patients were left for hours in reception without food or drink as they waited to be taken home or to another hospital. At Edgware hospital, we met an old lady and her daughter-in-law. The old lady had been discharged there from Barnet hospital, in whose discharge lounge she had been left for most of the day—in her night clothes, with her belongings in her lap in a clear plastic bag but without refreshment.

Medical problems are not addressed until they become critical. We were told of an 89-year-old who was admitted to hospital from her care home with pressure sores and dehydration, because the care home said that it was “not our job” to deal with such matters.

A number of witnesses raised concerns about malnutrition and dehydration. In 2006, the Healthcare Commission found that 20 per cent. of adult in-patients needed help with their meals, but that nearly 40 per cent. of those never, or only sometimes, received help. That led to uneaten meals being taken away from patients who needed help to eat them. In one case, that happened because it was not clear whether it was the job of the nurse or the care assistant to help.

However, we heard examples of good practice too, such as the use of red trays for patients who need assistance. I recently heard about a volunteer scheme at the Royal Free hospital, where volunteers help with what can be a time intensive and difficult job.

The Committee was told about the inappropriate use of medication, especially in care homes. Neuroleptic sedatives were used to keep difficult patients with dementia quiet, even though those drugs are not licensed for that purpose. We heard about a general practitioner who, without first examining her, prescribed sleeping pills to a care home resident with mild dementia to prevent her from disturbing staff at night.

The lack of privacy, dignity and confidentiality is a serious problem that has a significant detrimental impact on older people in health care. A number of witnesses spoke about mixed-sex wards. Not all of them opposed the continued use of such wards, but everyone raised serious concerns about privacy. Witnesses complained about sensitive medical advice being given to a patient on the ward within earshot of other patients, and about staff having conversations among themselves while attending to patients’ intimate care needs—in other words, just talking over the people in their charge.

The delayed discharge regulations were mentioned by a number of witnesses. In principle, it is important to ensure that patients do not stay longer in hospital than necessary. However, 16 per cent. of over-75s are readmitted within 28 days, compared with only 10 per cent. of those aged 16 to 75, which prompts the question about whether decisions to discharge are made prematurely. In one case, the wife of a patient died: his son wanted to attend his mother’s funeral, but the hospital decided to discharge his father on the same day.

Moving into care can be a life-changing event for many old people. They may have lived in their own home, with or without social services support, up to their hospital admission. Changing from an independent environment to one of dependency can be unsettling and traumatic. We were told that, in practice, older people have little or no choice on discharge. They are put into placements that do not meet their needs, or where adequate care is not in place. They are sometimes discharged to care homes instead of their own home, where they would be able to live with appropriate support. Other elderly people are discharged into care, miles from friends or family.

We were told that the Department of Health guidance that says that no one should be discharged direct from an acute hospital bed to a care home was routinely ignored. We recommended that the delayed discharge regulations should be amended to allow for more flexibility in applying the time period within which patients must be discharged. We also called for guidance to be given to hospitals and local authorities to help them respect the rights of patients under article 8 of the European convention on human rights.

The Government set out their view of how the regulations could and should work to safeguard respect for patients’ rights. The Minister expressed surprise at the evidence that we received showing that the regulations were not working well in practice. The Government need to do more to show that the delayed discharge regulations work as well in practice as the Department thinks that they work in theory. We have reported that, in practice, the regulations can compromise the human rights of older people in the ways that I have described.

The Government’s response so far has been complacent. I hope that the Minister will reassure us today by saying that he will look at how the regulations are working in practice and will reconsider issuing guidance to ensure that patients’ rights are respected when they are discharged.

So why do these problems happen? There is a real power imbalance: on one hand, we have frail, sick, elderly, vulnerable people and, on the other, a big and unresponsive bureaucracy. Both patients and providers have an extremely low awareness of a patient’s rights. It is not just a matter of providing a proper, professional service for the patient; it is also the patient’s enforceable human right to receive such a service.

Older people can be very stoical, and they are often reluctant to make a fuss and complain. They may say, “I am old, what can I expect? I am grateful for what they are doing.” Such expressions exemplify their approach to life. Low expectations are, in effect, internalised ageism. They are compounded by the fact that some of the most elderly people remember the time before the NHS was founded, when there was no affordable medical care.

Human rights are seen as a matter only for a health trust’s legal department. They are a regulatory burden: they require boxes to be ticked yet have nothing to do with the reform of service delivery. The failure to protect and respect the human rights of older people in health care is a deep-rooted cultural problem in the system.

We also received evidence of both direct and indirect discrimination on the grounds of age. Direct discrimination is less common than in the past, but it has not vanished. Age Concern gave us some examples, among them the fact that invitations to breast screening stop for women over 70. In addition, doctors are less likely to refer angina sufferers to see a specialist or to have tests if they are over 65.

The Committee heard about one GP being called too late to see a care home resident whose health had deteriorated suddenly. Earlier access to a GP would not have been denied to a younger, non-dependent person, as that person would be able to arrange an appointment at an earlier and personally convenient time.

I endorse the concerns that the hon. Gentleman has expressed about the second two cases. I think that he will remember that we made a recommendation about breast screening age. When one is dealing with a screening procedure for a defined population, it can be legitimate to identify those people for whom routine calls for screening will not be cost effective. The people I am talking about are the ones who are still able to opt into the screening for themselves, in a cost-effective way. I know that the hon. Gentleman understands that there is an important distinction to be made between the first of the examples that he gave and the other two, which are not acceptable.

I hear what the hon. Gentleman says, and I think that that came out in the evidence.

Returning to the point, more subtle forms of discrimination are still endemic. The NHS’s national director for older people’s services told us that there are still

“deep-rooted, negative attitudes and behaviour towards older people”

in the NHS. Examples include making decisions on whether to refer or to treat people on the basis of those

“deep-seated underlying attitudes and beliefs about older people.”

For example, elderly people are less likely to be offered “talking therapy” for mental health problems. Financial arrangements can also discriminate against older people. We were told that local authorities frequently have lower budgets for their teams dealing with older people than for those dealing with younger people.

We are not convinced that the existing legislation does enough to protect and promote the rights of older people in health care. In addition to our recommendations relating to the Human Rights Act 1998, which I will come on to shortly, we made two recommendations to address that problem. We called for a positive duty to be placed on the providers of health and residential care to promote equality for older people. We also recommended that the current prohibition on age discrimination in the workplace should be extended to the provision of goods, facilities and services so that it would include health care, among other things. The Government told us that they would consider the suggestion in the context of the review of discrimination law. Perhaps the Minister can tell us what his view is, and also say what progress is being made.

What do human rights offer beyond what should be good practice, common sense, and good old fashioned manners? That was considered by one of the Lords on our Committee when we started looking at the issue. The NHS is good at curing, but what about caring in the wider sense of the word? Human rights are based on dignity, respect, equality and fairness. We can all agree that those concepts are particularly relevant to vulnerable groups, such as older people in health care. The Human Rights Act is best seen as a tool that can and should be used in law, policy and practice to ensure that those social justice goals are achieved. It is a lever to help drive up improvements in service. It is not merely that there a duty on the NHS and its staff to provide services properly; the patient has an enforceable right to receive such services, too. The Human Rights Act can help put patients, and not finance systems or staff, at the heart of the NHS.

The organisation Action on Elder Abuse told us:

“Debates in both the health and social care sector have ignored the Human Rights Act and have instead been focused upon costs, rather than quality of care provision. We are addressing a ‘mass production’ approach toward older people, rather than a ‘quality approach’”.

By giving legal force to concepts such as dignity, respect, equality and fairness, the Human Rights Act empowers patients and carers to demand better quality treatment. Patients in vulnerable circumstances can be powerless in the face of unresponsive systems. The Act also empowers individual members of staff and their teams to improve the ways in which they work. The Royal College of Nursing told us that human rights

“legitimise speaking out when things are not right.”

The human rights legislation gives nurses and care workers ammunition to pressurise management to change bad practice or improve resources because the rights of their patients are being infringed. Of course, good quality patient-focused treatment is to be found in parts of the NHS, but best practice is not universal throughout the service. The Human Rights Act provides a framework to encourage best practice in health care and, because it has the force of law, it also acts as a backstop to ensure that a positive approach to respecting the human rights of patients becomes the norm.

We have all seen the signs that say, “Our staff are entitled to be treated with dignity and respect,” or “We will prosecute those who assault or abuse our staff.” Where are the ones that say, “You, the patient and the relatives, are entitled to dignity and respect. We will take action against those who assault or abuse you”? I have yet to see them myself.

In practice, it is important to look at how the Human Rights Act can work. The British Institute of Human Rights, with the Department of Health and five NHS trusts, has completed a pilot programme to demonstrate how a human rights approach can be mainstreamed in the NHS. For example, upholding human rights is one of the strategic objectives of the Mersey Care NHS Trust, which is participating in the pilot, and there is board-level leadership on the issue. We were told:

“People have traditionally had things done to them rather than being actively involved. Now that service users and carers are involved...they say it makes a difference for them, they feel valued, they have interesting things to do.”

Users and carers also say that involvement makes a difference to staff attitudes, clinical practice and the kinds of services that are provided.

The pilot programme provides welcome evidence of the kind of institutional respect for human rights for which we have long been calling. It integrates not just the elderly, but other vulnerable people, such as adults with learning disabilities and those at risk of discrimination on the grounds of race and gender. However, such practice is the exception rather than the rule. In 2003, the Audit Commission found that 60 per cent. of health bodies had not yet adopted a strategy for human rights from the Human Rights Act. We have seen no evidence that the position has improved. Will my hon. Friend the Minister bring us up to date on the BIHR pilot? When does he expect to evaluate its impact? We would certainly like to see the human rights approach piloted by that project implemented across the health care sector. We hope that the Minister supports that, and will explain how it is going to be developed.

The Human Rights Act provides a legal underpinning for dignity, respect, equality and fairness in health care and elsewhere. Respecting human rights is not a question of take-it-or-leave-it best practice; it is a legal duty on public bodies. Public bodies have a positive duty to take active steps to protect and respect the human rights of the people with whom they deal. In our view, an understanding of that legal obligation in the public sector is very limited. As a result, there is infrequent compliance. We call for the positive duty that is implicit in the Human Rights Act to be spelled out explicitly in primary legislation. That could kick-start the institutional changes that are needed in public authorities to put the human rights of their users at the centre of their work. The Government’s response to that recommendation missed the point entirely. It merely referred to the terms of the Human Rights Act and the role of the Equality and Human Rights Commission in encouraging public bodies to comply. Our argument is that the existence of that positive duty is not contained in the Act, so understanding of it and compliance are poor. Will my hon. Friend the Minister explain to the House why the positive duty should not be spelled out explicitly in primary legislation? If not, how does he intend to ensure that the NHS bodies act on that duty?

Does the hon. Gentleman recognise that the Government had a chance to do just that recently when we looked at the matter in detail in the Health and Social Care Bill?

The hon. Gentleman is right, and I proposed amendments to that effect, which I might mention in a few moments.

The health and social care inspectorate—currently the Healthcare Commission— and the Commission for Social Care Inspection are important in ensuring that health care providers respect and promote human rights. We were critical of the Healthcare Commission for regarding the Human Rights Act as just one of a large number of regulations to which it is subject. The Human Rights Act is fundamental to the work of the commission, and should be used explicitly in its regulatory work. The Government response pointed to a recent report by the commission, “Caring for dignity”, which included the commitment to ensure that dignity and human rights are the underlying principles that inform the work undertaken by the commission.

Things have moved on since our report, and the Bill to merge the inspectorates into the new Care Quality Commission has passed through the House and is in the other place. We published two reports on the Health and Social Care Bill. The first set out amendments to the Bill to take account of some of the recommendations in our report, which we debated on Report a few weeks ago. Our main concern is to ensure that the Care Quality Commission adopts a human-rights based approach to its work and that human rights are reflected in the care standards that will be issued by the Department. The Minister was not persuaded that human rights should be one of the factors of which the CQC should take account in its work, and he said that the commission will be subject to the Human Rights Act.

In our view, the Government are again missing the point. There is ample evidence to show that health care bodies are not taking their commitments under the Human Rights Act sufficiently seriously. It has taken several years to persuade the Healthcare Commission that human rights should be a central element of its work, rather than simply being one of the many legal requirements that it must meet. The CQC will be in the same position unless the Government act now to accept our recommendation to insert a reference to human rights into the factors that the CQC must take into account.

We are not convinced that the National Institute for Health and Clinical Excellence is doing enough to take human rights into account in its decision making. That is particularly important in relation to difficult decisions about the availability of treatments for older people. We call for NICE to demonstrate in all its work that it takes into account convention rights as required by the Human Rights Act.

The hon. Gentleman may be aware that we have made a recommendation, and we hope the Government will see fit to copy it. NICE’s remit should be widened through legislation to include cost and clinical effectiveness and to bear in mind societal effects. That encompasses a reference to human rights, particularly in relation to carers and the cared for, and that is the provenance of our policy making.

The hon. Gentleman probably goes a little further than I would regarding the wider impact on society, and he may have gone beyond the human rights principles that we are advocating. If human rights principles were part of NICE’s basic approach, that would in itself be a significant advance and might address many of the matters about which he is concerned.

I shall now consider the position of NHS staff, who are on the front line in protecting and promoting the human rights of older people in health care. They are the people with whom older patients and residents interact every day and on whom they rely. We are not talking simply about doctors and nurses: the attitudes, actions and omissions of reception staff or those involved with patient transport have a major impact on older people. They, too, should know what is needed to respect, protect and promote the human rights of the people with whom they deal. Given the many competing demands on health care staff, if cultural change is to be achieved, it is vital that all staff understand what human rights principles mean and how they should be applied. By respecting human rights, staff will also be able to recognise and support the positive benefit they bring to their own working lives, and the lives of patients and residents.

Since the Human Rights Act came into force in 2000, human rights training should have been provided throughout hospitals, care homes and other public sector organisations. In 2003, the Audit Commission made a similar recommendation, but the training has not materialised. When training is provided, it is on a one-off basis and is somewhat unfocused. We recommend that all staff working in health care, both clinical and non-clinical, receive targeted and regular training in human rights principles and duties, and how they apply to their work. The training should be integrated into general training, so it should not be costly.

We also ask the Government, the regulators, and the Equality and Human Rights Commission to monitor the extent to which training is provided. The Government responded positively to our concerns and mentioned a number of initiatives that deal with training and guidance on human rights. Perhaps the Minister will tell us what is being planned in more detail and the time scale for those initiatives.

We should focus not just on abstract training, which can often be quite legalistic, but on the practicalities. Health and safety legislation has resulted in many nurses and carers in care homes being discouraged from undertaking the lifting that was commonplace in the past. Training has always been required to enable somebody to lift well, without causing bruising to vulnerable people who are susceptible to bruising. Training at that level is also a human right in relation to professional skills, and we should, for example, train people to lift, rather than simply inform them about the legal issues.

The hon. Gentleman has made an interesting point. There was a Human Rights Act case that trumped the ban on lifting and stated that patients should be lifted when appropriate. Obviously, with appropriate training, it is possible to lift people safely. I know from my old job as a personal injury lawyer that nurses can often be injured when lifting patients improperly, because they have not had the training or been given the additional staff required to lift patients safely. That is linked to the points I made earlier about how the position of staff should be strengthened when they argue against doing things that they consider to be in breach of the rights of their patients.

We recommend that qualifications, accreditation and relicensing for health professionals should include a basic understanding of human rights principles, such as dignity, fairness, respect and equality. I tabled amendments to the Health and Social Care Bill to address a number of those issues and although the Minister again argued that the bodies responsible for those matters are subject to the Human Rights Act, our view is that that is not enough to ensure that human rights are taken seriously. Staff who come across incidences of neglect or carelessness should be required to report them without fear of reprisals. Doctors and nurses are under a professional duty to report poor treatment, but other staff, particularly those in care homes, are not under such a duty. On our study visit to Denmark and Sweden, we were informed of Lex Maria and Lex Sarah—laws which require all employees in residential care or hospitals to report suspected abuse. We recommend that similar provisions should be introduced in this country by using the new care standards to be introduced under the Health and Social Care Bill. Will the Minister confirm whether or not the new care standards will extend the duty to report poor treatment to all NHS staff and care home workers?

It is key to ensure that older people are empowered. They are often unaware that they have human rights or that such rights are legally enforceable. At Barnet hospital, new patients are given a leaflet about what to expect from their stay, how to complain, and the discharge procedures, but not what their rights are. We call on the Department of Health, the inspectorates, and service providers to make information available in an accessible form to service users about their rights. The Government have agreed with that recommendation, so perhaps the Minister will tell us what is being done to implement it. The Government have referred to two publications—“Human Rights in Healthcare” and “Promoting Dignity within the Law”—which are apparently available to service users. Will the Minister tell hon. Members how many copies have been distributed to the public, and how the impact of those documents has been measured? Is he satisfied that his Department is doing enough to disseminate information about human rights to patients and carers?

Older people often benefit from independent advocacy to ensure that their voices are heard. We welcome the Minister’s support for independent advocates, but we are concerned about whether there are sufficient advocates to meet the needs of older people. We are also concerned about whether advocates are adequately trained in human rights principles. Effective complaints mechanisms are essential, but they function only if people know how to complain, are not afraid to do so, and are not victimised when they do. Ultimately, a system in which complaints can be made to a third party is needed. We are concerned about the proposal in the Health and Social Care Bill that states that the Care Quality Commission will not be able to investigate individual complaints in the way that the Healthcare Commission can. More emphasis will be placed on resolving complaints at a local level. Will the Minister explain how local arrangements will be sufficiently independent of the organisations that are the subject of the complaint to enable the process to be credible in the eyes of the complainants, especially those who fear victimisation from those about whom they are complaining?

I deal with the issue of complaints in my remarks. We had an extensive discussion on that matter in the Committee that considered the Health and Social Care Bill, despite the difficulty in getting the amendments in order and selected. Does the hon. Gentleman recognise that since the axing of community health councils and their immediate successors—local involvement networks are about to replace forums—there has been concern about the lack of independence for patient advocacy bodies, particularly in relation to NHS care? Those who are vulnerable and need help require an assurance about independence so they can trust the process, rather than thinking it will be an in-house fix. Such independence is still absent from the Government’s plans.

I understand what the hon. Gentleman is saying. There are two types of complaints: those that can be resolved locally and quickly without too many problems and others that are more serious and require further detailed investigation. Handling the latter category requires a degree of independence, which is why we have made our recommendations. I tabled amendments on Report, but unfortunately Mr. Speaker did not select them, otherwise we would have been able to debate the matter fully then. One of the advantages of a Joint Committee is that we have representatives from both Houses. I shall be surprised if my colleagues from the other place do not table amendments on the matter when the Bill starts its passage through the Lords.

One of our concerns related to the risk of eviction. We were alarmed by how little protection care home residents have against eviction, compared with tenants in rented accommodation. That is particularly relevant in the context of complaints: care home residents and their families and carers are less likely to complain about the care that is provided if they are worried that the response will be eviction. We heard of a care home resident who used the emergency buzzer at night. The care assistant took half an hour to come, by which time the resident had wet the bed. The resident was left in the wet bed, the buzzer was thrown across the room and, after making a complaint, they were given 28 days’ notice to leave. In another case, a low-level complaint was made to the care assistant about the resident’s bed not being made. Twenty-eight days’ notice was given to look elsewhere. The YL case arose out of similar circumstances, with the proposed eviction of Mrs. YL from her home in Birmingham.

In Denmark and Sweden, residents have the same security as other tenants. As their needs increase, the level of care steps up from sheltered accommodation to highly dependent, all in the same home. Will the Minister consider making it harder for care homes to evict residents? I am sure that hon. Members are familiar with the YL case, given the intense interest throughout the country in its outcome. In essence, users of services provided by the private and voluntary sectors but commissioned by public bodies are excluded from the protection of the Human Rights Act, as a consequence of the House of Lords judgment. That raises issues that go far beyond our debate today, but the consequences have been brought into sharp focus by the impact on care home residents: 77.9 per cent. of care homes are private and 13 per cent. are in the voluntary sector, which means that residents in 91 per cent. of homes have no direct protection under the Human Rights Act.

This year, for the second time, I have introduced a private Member’s Bill to attempt to resolve the general issues; and for care home residents in the interim, I moved on Report a new clause to the Health and Social Care Bill to restore the law to what everyone believed to be the case before YL and the earlier authority established by the Leonard Cheshire case. I am pleased that the Minister responded positively, with an undertaking to report to the other place with the Government’s own proposals. I hoped that that would result in a Government amendment, so I withdrew my amendment. Will the Minister bring us up to date on Government discussions and tell us what amendments he anticipates will be tabled in the other place?

I come now to the question of leadership. Until recently, the Department of Health manifestly failed to ensure that human rights were at the heart of health care policy and practice. It was left to voluntary organisations to provide leadership and fill that vacuum. We need nothing less than an entire change of culture throughout the health service and care home sector. Recently—perhaps because of our inquiry as well as the work of non-governmental organisations—Ministers and senior officials have come to understand better the importance of human rights in health care, and I very much welcome that change. The references to human rights in the policy documents that we have seen are good. I certainly cannot fault the Minister’s personal understanding of the issue and commitment to progress. However, we are concerned about how that translates into policy making and implementation in practice.

At the end of our inquiry, we remained without confidence that the Human Rights Act was

“an integral part of policy-making”

in the Department. Initiatives such as the British Institute of Human Rights pilots are welcome but piecemeal, and there is no clear strategy on making human rights integral to the work of the Department as a whole. There has to be much clearer guidance, and we need a much stronger cultural steer. The reluctance to use the language of human rights must be overcome. It is not an embarrassment, but a guarantee of good practice.

The Government told us that they were focused on improving their performance, drawing on support from the Equality and Human Rights Commission. Will the Minister tell us whether there will be a departmental human rights strategy, so that human rights considerations can be at the heart of the Department’s work? How will the Department demonstrate leadership throughout the NHS on human rights? The Department said that it would review its policy-making processes to ensure that they reflected human rights considerations. Has that been done? If so, what was the outcome?

This year, the NHS is celebrating its 60th anniversary. It has been a remarkable success story overall. In our inquiry, we pointed to ways in which it can be more successful still by putting human rights at the heart of its work, which will make the rights and needs of users central to the work of the NHS, helping to ensure that financial or staff pressures, or the sheer weight of the bureaucracy, do not drive policy and practice. As one consultant told us, “Looking after older people well is a lot cheaper than looking after them badly.” That can be done without spending enormous sums of money, but it requires a cultural shift from the top of Richmond house down to the staff on the hospital reception desk or in the call centre. The welcome political commitment recently shown by the Minister and his colleagues must be both intensified and sustained, so we will continue to keep the Department of Health under scrutiny until the human rights of older people in health care receive the respect to which they are entitled.

I congratulate the hon. Member for Hendon (Mr. Dismore) on the way in which he summarised the findings of the report and the reaction to the Government response to it. I also thank him for his chairmanship of the inquiry. As a member of the Committee, I can certainly testify to the fact that it was a thorough and serious inquiry, examining what could have been a very wide field. Efforts were made to narrow down the issues that we considered in order to produce a focused report that was able to make specific recommendations in the relevant time scale. Our Committee is a busy one. It scrutinises the human rights compatibility of all Government Bills and some private Members’ Bills, and considers the UK’s compliance with treaty obligations and judgments in our domestic courts and at the European Court of Human Rights in Strasbourg on human rights cases. It also conducts thematic inquiries; the one that we are discussing was a significant piece of work last year.

I endorse everything that the hon. Gentleman said. I just want to make a number of additional comments. First, I apologise to the Minister, to you, Lady Winterton, and to other hon. Members present because I will not be able to stay to hear the concluding remarks. Therefore, I shall not ask any specific questions of the Minister; I shall just add some commentary to what the hon. Member for Hendon said.

I was struck by a process issue, which I shall place on the record in the hope that clarification can be given. Our report contained 54 conclusions and recommendations, but the Government response considered 36. I found that confusing. It turned out that those 36 included the expansion of one of our recommendations to two in a number of cases, so the Government probably responded specifically to only about 30 of the 54 conclusions and recommendations.

What the Government have done—I am not criticising this; I am just commenting because it is not something that I have noticed before—is respond only to those conclusions and recommendations that were recommendations. Perhaps that is appropriate, but I think that when we put certain parts of our report in bold type and considered them conclusions, we were expecting the Government to react to the assertions that we were making, even when they did not start with the words “We recommend”. Perhaps there is an issue of process for those of us on the Committee to consider. Perhaps we should specifically say at the end of every assertion, “We recommend that the Government respond to this assertion,” because if that does not happen, it is hard to engage in the give-and-take of a report and response as fully as we would want.

In fairness, I accept that the Government did engage on the points to which they responded. I suspect that the Government are not able as effectively to clarify which of our assertions they disagree with. A couple of those are exemplified in the recommendations that we made on delayed discharges, which was the subject of one of the first sections of our report. The hon. Member for Hendon spent some time explaining why we were concerned. Our conclusions and recommendations included a number of points that were not formal recommendations. For example, we said:

“We are…concerned that the premature or inappropriate discharge of older people could lead to their readmission shortly afterwards.”

I would be interested to know from the Government whether they think that delayed discharges could have the unintended and possibly unavoidable consequence—this may just be something that has to be accepted—of an increase in readmissions, which is not necessarily in the clinical interest of any patient, but particularly not in that of older patients.

The Government point out, and I accept, that when someone is clinically ready for discharge, the last place or one of the last places that they want to be is in an acute hospital. Hospital is then inappropriate, with the risk of infection and so on. There must, however, be a balance between that and over-hasty discharge, with or without the risk of readmission, but certainly where there is the risk of readmission.

As I say, the Government gave a lengthy response to the conclusions and recommendations that they said they would respond to, and we should put on record our gratitude for that, but we did not get a full response on this issue, as the hon. Member for Hendon said. In theory, delayed discharge arrangements should not, as the Government intend that they should not, cause premature discharge where that is not in the patient’s best interests—they may not be ready, or the circumstances may be inappropriate, as, for example, in the case of direct discharge to a care home where there is no interim arrangement. However, the evidence that we took, which was backed by data, rather than by mere assertion, suggested quite strongly that that was happening in practice, and it is what happens in practice, not in theory, that is the problem in human rights terms. Similarly, if everyone was healthy in theory, but a lot of people were not healthy in practice, we would still have the problem of people suffering ill health.

In their response, the Government did not engage with the question whether it is right that the intention is that no one should be discharged directly from hospital to a care home. There is a great deal more to be said in this debate and beyond about to which evidence in our report the Government take objection. They are entitled to say, “We don’t think this evidence is correct. We think you heard only one side. This conclusion is not valid.” However, given that they restricted themselves to responding to two specific recommendations—they call them 1 and 2 in their response, but both were part of conclusion and recommendation 3 in our report—we did not get the full picture. The Committee may well consider following the issue up in a further evidence session with the Minister so that we have the dialogue that the work of the Committee, the work in the report and the needs of older people merit.

The second issue that I want to touch on is the National Institute for Health and Clinical Excellence. Again, the excellence and completeness of the speech by our Chairman mean that some of these issues have already been raised, but I want to raise a couple of extra ones. Paragraph 192 of our report states:

“In their evidence, NICE note that they have taken advice from their lawyers, and that their procedures are human rights compliant”.

NICE went on to say that human rights were not often cited in appeals. However, that is not what should be required of the human rights culture in public authorities such as NICE. It is a matter not simply of compliance but of recognising that there is a positive duty to consider human rights and to seek to enhance their attainment by the group in question, which, in this case, is particularly vulnerable. That is why, in paragraph 193, the Committee says:

“In particular, we are not convinced that NICE are fully taking human rights into account in their decision-making.”

That sentence appeared in bold, but because we did not use the words “we recommend”, there was no Government response. As a result, we do not know whether the Government agree that the evidence to which we drew attention is a fair reflection of what NICE is doing.

Speaking of the place of human rights in NICE’s social value judgment guidelines, which would seem to be an important place to consider human rights, Age Concern told the Committee:

“it was completely absent from that work.”

To be fair, the Government response to one of our recommendations on the issue confirmed that NICE was revising that guidance and that the issue would now be included. The Government said:

“The National Institute for Health and Clinical Excellence…are currently updating their document Social Value Judgements, which helps those developing NICE guidance in making their decisions. NICE will take this recommendation into account when updating the document, and will be consulting publicly later this year.”

That is useful to know, but that short paragraph is all that we have in response to quite a significant section of our report, which goes from paragraph 191 right to the end of paragraph 199.

My other point about NICE relates to age discrimination, and this may be an indirect consequence of the way in which NICE works. In our report, we said—I am pleased that we did so and I may have argued that we should do so—that we did not take enough evidence on the nature of quality-adjusted life years, which are a significant part of the measure of cost-effectiveness. We did not take enough evidence to judge whether they were appropriate, particularly given the issue of indirect age discrimination. We received conflicting evidence on the issue. NICE told us that a measure of quality-adjusted life years could often be advantageous to older people. Indeed, one of the strange things about the reluctance of some health care providers to give surgical coronary care, for example, is that there is good evidence that the older people are—within reason and on average—the greater the clinical benefit of intervention. That might seem counterintuitive, but older people often find it difficult to compensate for a physiological problem, and once it is corrected, the improvement in their quality of life is more marked than it would be in that of a younger, fitter person.

A younger person may already have compensated for the problem and will not, therefore, see such a vast improvement in their health as it affects their daily activities, even though the surgical correction is the same in each case. That is why NICE claims that quality-adjusted life years can be advantageous, but if there is a choice to be made about to which patient a rationed treatment such as a kidney transplant should be given, there is an understandable trend to give it—all other things being equal, although they often are not—to the younger person because they have more life years to gain.

I think that that approach is reasonable, but such things should not be done surreptitiously or on the nod. There should be a public debate about the issue, and a decision should be made about whether the good innings argument is a legitimate basis on which to make difficult decisions when a scarce health care resource could help more than one person. That should be made explicit, and there should be a role for Parliament in deciding such things, not simply for a group of people brought together by NICE in a focus group. When it comes to age discrimination, there is a huge amount of sensitivity about such things, which clearly engage with human rights issues.

Parliament has failed to make clear how it wishes such resources to be allocated. I was pleased that the Secretary of State for Health acknowledged that rationing did exist in the health service. He is the first Secretary of State for Health in this Government whom I have known to do that. I think that rationing exists, but the issue is whether it is fair and explicit, not whether we should have a false debate about whether it takes place or not. Older people may well be the victims of unfair rationing and they may, indeed, be unknowing victims, if they do not know that rationing is taking place.

The hon. Member for Hendon also raised the point that some in the medical profession tend to use age as a factor, independent of clinical factors, in deciding what treatments to give. It is not acceptable to say that specialist cardiac care will be given to under-65s, while over-65s will get cardiac care as part of a care-of-the-elderly service. If there is an advantage to having specialist cardiac care, it should be available to everyone who can benefit from that care; it should not be made available simply on the basis of an arbitrary, if understandable, age cut-off. Far too often in the health service, we still see convenient cut-offs based on age, and that may, on one level, be because of sensitivity to the fact that older people need the series of skills provided by a care-of-the-elderly team. If the main problem of an otherwise healthy person who happens to be over 65 is cardiac, and they do not need the specialist input that a care-of-the-elderly teams can give, they should be seen by the specialist cardiac team, who can seek input from their colleagues in care of the elderly—not the other way round.

I am following the hon. Gentleman’s argument, and I see that he is using a clinical evidence base with respect to what is appropriate or inappropriate treatment and attention. Is there behind what he is saying a concern about the funding base for NHS and means-tested social care, and about whether arbitrary age cut-offs could mean that NHS care would not necessarily be provided; or is the hon. Gentleman purely basing his argument on clinical issues?

I do not think that that is an argument solely about care of the elderly. Whatever someone’s age, if they need residential care it is likely to be means-tested. We know that there is pressure on the people running the budgets of any publicly funded service for which 100 per cent. of the funding is provided by the state to move people into means-tested care. I know that the hon. Member for Eddisbury (Mr. O'Brien) has an interest in that dilemma. The situation is inevitable, when in many contexts there is a boundary between NHS and means-tested social care; it occurs more often in the context of care of the elderly, but I was not making exactly that point.

Finally, I want to mention population screening. The Committee heard from Age Concern, which has been pretty consistent about the matter. Its view was that an upper age limit for screening programmes was discrimination on the grounds of age. I argued against that necessarily being so: when consideration is given to the question of which populations should be brought in for population screening, it is possible to analyse cost-effectiveness. That captures a great many aspects of the matter, such as the sensitivity and specificity of the test, its acceptability, and the effectiveness of treatment for those who are found to be true positives. A calculation can be done of the overall cost-effectiveness by population, according to age—or, indeed, according to other factors, although age is commonly used.

There are some age groups in which it is simply not cost-effective to screen. It would be wrong to take resources from effective and cost-effective treatments, to provide a screening programme that might sound good and be popular, but would not be cost-effective. I think we must accept that, which is why I disagreed with Age Concern’s view that an age cut-off for calling in people to be screened is always inappropriate, and why I intervened on that point in the speech of the hon. Member for Hendon. That is not to say that if someone wants breast screening, for example, but is over the age at which people are called in for it, they should not have access to it on request. That is permitted in the NHS and I make no criticism—nor, I think, does the report—of Government screening programmes, at least on those grounds. It is not gender discrimination to provide breast screening only for women; it is a question of effectiveness, and cost-effectiveness, in the end.

In conclusion, I want to comment on the meaning of the term “public authority”. The hon. Member for Hendon hid his light under a bushel, to some extent, in his speech. The Joint Committee on Human Rights has an interest of long standing in the question of the failure—in practice and on the part of the courts—to understand the meaning of “public authority” as including those private companies and organisations that provide a public function, particularly with respect to health care. The hon. Member for Hendon has a long history of effective campaigning, as a Back-Bench MP and as Chairman of the Committee, to push the Government to move more quickly than they have towards a resolution of the problem—even after the Leonard Cheshire case, and before the YL case.

I think there is a huge expectation in society, within NGOs and in the House, that there will be effective provision—even if it is not the whole story, for reasons that we understand—by the Government in the House of Lords. I know that the Minister will want to reassure us that that is so, because I know that he and his colleagues, including the Minister of State, Ministry of Justice, the hon. Member for North Swindon (Mr. Wills), have been lobbied about the matter. They have heard the arguments and have had a series of meetings with hon. Members and outside groups, so they are not blind to the issues. We hope that progress will be made now, with the Bill that is currently going through Parliament, even if a wider solution is needed in later legislation.

I add my thanks to those offered by the hon. Member for Hendon to the people who supported the Committee in its work, those who gave evidence, those who helped us with the report and our specialist advisers. It is an excellent report, and I join the hon. Gentleman in commending it.

I want to say how pleased I am to be contributing to the debate. I commend the Joint Committee’s excellent report, and the work of the hon. Member for Hendon (Mr. Dismore) and his Committee. The report could not have come at a better time to move the debate forward. We would probably all agree that things have not been moving as quickly as we should have liked. To quote Help the Aged, which also welcomed the report:

“Sadly, we have seen little progress in this area since we published Rights at Risk in 2005 and think that it is now long overdue.”

As the Joint Committee’s report made clear, there is much excellent health and social care provision for older people throughout the country. It is very heartening when we see at first hand the best of our health and social care professionals giving such care, and ensuring the dignity and human rights of older people—something to which we are all committed. Unfortunately, as we have already heard powerfully expressed by the hon. Member for Hendon, examples of neglect and abuse of older people are simply too widespread. We probably all accept that we are talking about a societal problem, and not simply a political one. Some people’s attitude to older people is a manifestation of a view of them as second-class citizens who somehow do not have the same human rights that other people do. All the cases that we have heard about from the hon. Gentleman suggest that such attitudes are found far too frequently.

I was very happy, as I think the hon. Gentleman knows, to put my name to amendments to the Health and Social Care Bill that tackled the current loophole in the Human Rights Act 1998, affecting private and voluntary care home residents who are not state funded. I shall talk about that more later, but will mention now that there are 300,000 vulnerable older people who are not protected by the Human Rights Act. There have been discussions with the Minister of State, Department of Health, the hon. Member for Exeter (Mr. Bradshaw), and I welcome the fact that they are continuing.

We still, however, hear of cases of malnutrition and dehydration, rough handling of patients, bullying, neglect and people being left in their own urine and excrement. The British Institute of Human Rights provided a list of examples, including continent older people being forced to wear incontinence pads; the bathing of older people one after the other in the same bath; routine over-medication to keep people docile; night staff forcing older people to wake at 4 o’clock in the morning to be cleaned and dressed, simply because that suits the shift pattern; and an older woman being placed on a commode, fed Weetabix and washed by a carer, all at the same time. The issue that was so well highlighted by the Joint Committee’s report is that, at the moment, there is no real recourse to a legal remedy under the Human Rights Act. Until that changes, older people and, of course, younger disabled people are unable to challenge clear violations of their human rights by independent providers of health and social care.

The report was neatly summarised by the hon. Member for Hendon. He mentioned some of the key issues, the first being hospital discharge. Again, inhumane discharge procedures often happen simply because of a lack of consultation with families or a lack of information to the individual and their family. There is very little information about options—frankly, a lot of the time, there is no choice at all. Often, such things happen in the context of bed-blocking, which is a difficult situation, and the need to move patients into appropriate care facilities from hospitals. However, despite the inevitable pressures, we must ensure that older people have rights. That needs to be addressed, and patients’ rights need to be clearly spelled out, which I hope we will hear from the Minister.

I am sure that we agree that confidentiality causes problems. It is vital that the Department of Health issues clear guidance and perhaps a code of practice to make clear the limitations to the duty of confidentiality so that, when appropriate, family members or carers receive information and are involved in decisions, as they clearly need to be in some cases.

On the right to complain, there are huge barriers in the system as it currently operates. The hon. Member for Hendon gave a powerful, specific example of someone who was evicted for complaining. So many people in our care homes fear that. People within the NHS often have limited awareness of the organisation’s complaints system, or they have difficulties navigating it. That strongly makes the case for an independent advisory service for people, their families and carers to enable them to navigate their way through the system and to show them where to go when they have a grievance and wish to make a complaint. There should be an independent complaints system in social care settings to ensure that people have the right to speak up.

Returning to the human rights loophole, we had lengthy discussions on the matter in debates on the Health and Social Care Bill. Because 90 per cent. of care homes are in the private or voluntary sector, the issue can no longer be ignored if we are serious about tackling the problems that we have heard about today. I was pleased to take forward amendments on the back of the Joint Committee’s report, and to work with the hon. Member for Luton, North (Kelvin Hopkins), who led on those matters in the Health and Social Care Bill Committee.

I welcome the way in which the Minister of State, Department of Health, the hon. Member for Exeter, listened and engaged with organisations and MPs across the political spectrum to take the matter forward, but the fundamental issue remains. Until we close the human rights loophole—some of us strongly believe that that must be done in the Health and Social Care Bill—we will continue to experience situations in which two residents in the same care home have different rights or, indeed, one will have rights under the Human Rights Act but the other will not, simply because one has assets of more than £21,500 and the other does not. That cannot be right.

I was happy to discuss the matter at the Department of Health, and to acknowledge the challenges of the way in which the Human Rights Act is currently framed. However, it cannot be right that one person is covered and another is not, even though they receive the same care in the same institution. We all accept that principle but the challenge is to legislate for it. The Government said consistently in Committee that they did not believe that the Health and Social Care Bill was the right measure to tackle the issue, and they talked about doing so later on in a Bill of Rights.

May I seek clarification on the hon. Gentleman’s comment on differential rights in the same establishment? As I understand it, the problem that we are all keen to sort out is that publicly funded individuals in a private establishment ought to be covered by the Human Rights Act, but are not. On Parliament’s and the Government’s intentions, self-funders were never going to be covered by the Human Rights Act, which leads us to a debate on how to protect them. However, as I understand it, the problem is not that there is one group of people in a home who are protected while others are not; it is about public commissioning in private homes. Parliament and Government intended that those who were publicly funded should be covered by the Act even if they live in a private home, so we do not have an apartheid system in any single establishment. It is simply that a group of people who we thought ought to be covered are not covered at the moment.

Before Mr. Mulholland gets to his feet again, it would be helpful if hon. Members—I have been lenient—made shorter interventions.

Thank you, Lady Winterton. I heard what the Minister said, but it is my understanding—I might be wrong—that we are talking about people who are self-funding, who might well be in the same environment as people who are publicly funded. The simple principle remains: I and many organisations believe that every individual, regardless of whether the home is public, private or voluntary, and regardless of whether they are publicly funded, part-publicly funded or privately funded, should be covered by the Human Rights Act. In the end, that is what I and older people’s organisations want.

I therefore welcome the helpful U-turn by the Government, who, following discussions with the Minister of State, are planning to bring forward an amendment on Second Reading in another place. First, will the Minister say whether the amendment will cover all four nations in the United Kingdom? We are aiming for universality, so any other measure will not do. Secondly, to return to our earlier discussion, will the amendment cover all care provision, including both self-funders and those who are publicly funded? Otherwise, we will continue to have a split. Perhaps the Minister will clarify those things when he makes his winding-up speech.

I have been listening very carefully. I would be very surprised if such an amendment came forward because, if the Government held talks, they did not involve any Member of the official Opposition. As the other place prepares to consider the Bill, we have not been informed that the Government have any such amendment in mind. As far as we know, there is purely the prospect of a discussion on a Bill of Rights that might incorporate such ideas.

All I can say to the hon. Gentleman is that MPs who were invited to the discussion with other organisations added their name to amendments in Committee. That might be something that he wants to take up, but it shows that we need clarity. I believe that the Government will table an amendment that represents a U-turn from the position taken by the Minister of State in Committee. The concern of older people’s organisations and human rights organisations is that it should not be a half-way house but should cover everybody in care homes.

We heard today—I am sure that we all agree—that the human rights of older people are not sufficiently enshrined in law, and that we do not have the kind of duties at the heart of the health and social care that are needed. Until the Government are prepared to take action, closing that loophole and introducing the necessary duties, the human rights of older people will not be central to our health and social care systems. I am sure we would all agree that we need to move towards that position.

It is a pleasure, Lady Winterton, to serve under your chairmanship for this timely and important debate.

I congratulate the hon. Member for Hendon (Mr. Dismore) on introducing the debate in such a comprehensive and reasoned manner. I also congratulate him on his chairing of the Joint Committee. I hope that he has the chance to secure further discussion of the subject in the main Chamber. I am sure that it merits such a debate. At the very least, it is highly likely that the report will be referred to in connection with many other matters that are to go through both Houses, and in other contexts.

I pay tribute to all nurses, carers and others in the care sector—and, indeed the care home owners and businesses. They provide excellent care, day in and day out, to the most vulnerable people in our society. We should not allow aberrations, however horrible, to cloud our judgment of those who discharge their duty with skill, compassion and professionalism. They work towards quality of life, dignity, respect and well-being with the unremitting best care and attention that we know exist.

I hope that the Minister will enlighten us as to why no mention was made of social care in yesterday’s Budget, and why no mention was made of the NHS—our No. 1 priority and, until yesterday, what the Prime Minister said was also his priority.

The Joint Committee identified the areas on which this debate should focus. They were that human rights should be integral to policy making by the Department of Health as well as to the planning and implementation of services in hospitals and care homes; that human rights should underpin the work of the proposed health and social care inspectorate; that front-line staff in health care should receive appropriate education and training in human rights; and that there should be no discrimination on the ground of age in the provision of health care to older people. The Committee also highlighted the fact that the debate would be an opportunity to scrutinise the Government’s response to the judgment of the House of Lords in the YL case, in which it was found that private sector care homes were not public authorities for the purposes of the Human Rights Act 1998.

The Joint Committee’s report charted failings under articles 2, 3 and 8 of the European convention on human rights because of malnutrition and dehydration, and the inadequate assessment of a person’s needs; articles 3 and 8, because of abuse, rough treatment, neglect, carelessness and poor hygiene, and bullying, patronising, and infantilising attitudes towards older people; and article 8 because of the lack of privacy in mixed sex wards—another broken commitment by the Labour party—and a lack of dignity, especially for personal care needs.

The report also noted failings under article 8 because of insufficient attention being paid to confidentiality, inappropriate medication and the use of physical restraint, too hasty discharge from hospital, fear among older people of making complaints, and eviction from care homes; article 14 because of the discriminatory treatment of patients and care home residents on grounds of age, disability and race; and articles 8 and 14 because of communication difficulties, particularly for people with dementia or people who cannot speak English. Those are the issues that underpin our debate.

The Department’s responses on the question of human rights being integral to policy making and the planning and implementation of services were disappointing. In its response to recommendation 8, it failed to commit itself to a statutory constitution for the NHS. The wider concern is not just that human rights are left out. In December 2006, a consultation on the core principles of the NHS—we have committed ourselves to enshrining those principles in legislation—was undertaken by the Secretary of State for Culture, Media and Sport when he was Minister of State at the Department of Health. In it, the Government omitted the principle that

“Public funds for healthcare will be devoted solely to NHS patients.”

Are the Government still planning to get rid of that central pillar of our NHS?

I would be grateful if the Minister provided me with a copy of “Better Policy-Making”, a document that the Government pray in aid in their response. However, the response does not make clear whether the document highlights human rights in any way. I genuinely trust that the Government will not seek to divert the Joint Committee with such an action.

The Joint Committee also proposed that human rights should underpin the work of the proposed health and social care inspectorate. Like others, I had the privilege of serving on the Committee that considered the Health and Social Care Bill. I am glad that we have the opportunity today to hear from the Minister about the Care Quality Commission. One of our concerns is that, in the merger, social care will be squeezed out as a priority.

It was unfortunate that the Minister, who is responsible for social care, was not chosen to take that Bill through Committee. A number of Committee members would have liked to see him take charge of that Bill; we believed that we might have made more progress if he had had responsibility for the Bill rather than his colleague, the Minister of State, Department of Health, the hon. Member for Exeter (Mr. Bradshaw). Indeed, I know that that concern was shared by some of the Minister’s colleagues.

The Commission for Social Care Inspection has said that it

“believes, in line with general Government policy, that the new regulator should take a strong rights based approach towards the people who use social care and health services...and their carers”,

and there is a desire to “properly reflect” that “in the legislation”. The official Opposition sought a number of changes to the framing legislation for the Care Quality Commission. One of the most important was to create a reference board consisting of commissioners, and a management board consisting of executives, at the head of the commission. That would have resulted in stronger governance, and the promulgation of human rights.

The Minister of State rejected that proposal on the grounds that he did not want to tie the hands of the new commission in its structure—a somewhat spurious argument, as the legislation as framed prevents it from having that structure should it so desire. One has to look at it the other way around. He may genuinely have wanted the freedom of that option, but the legislation was deliberately set out to ensure that that option was closed.

The Bill Committee also sought to establish a human rights committee within the CQC. The Minister of State refused that request on the ground that the advisory committee set out in schedule 1 to the Bill would fulfil that requirement. However, he also said that the advisory committee would be used for patient and public involvement. I wonder whether the Minister will take this opportunity to clarify those mixed messages.

It was also disingenuous of the Department, in its response to recommendations 20, 21 and 22, to say that it would take no action on human rights because it

“will not be specifying the precise work programme of the new regulator”.

On health care-associated infections—the new phrase for what we used to know as health care-acquired infections—the Government have mandated action from the CQC in the Bill. Why are HCAIs more important than human rights? Why, for that matter, are such infections more important than malnutrition, which affects more people and also breaches article 2, 3 and 8 of the European convention on human rights? The Government repeatedly refused to include that in the Bill, and I hope that the Minister will shed some light on the illogical nature of the Government's contention. Does he believe that HCAIs are more important than human rights, and can he say why the Government were not prepared to include malnutrition in the Bill? As we argued in Committee, many people say that it is closer to a human rights issue.

It was encouraging to see the Joint Committee’s focus on training in human rights for staff, a matter that the hon. Member for Hendon rightly focused upon. Training was discussed at length by the Bill Committee, and I hope that those discussions will be noted by the CQC. The other side of the coin is that staff should have the time to put into practice the things that they have learned.

In fact, the majority of those in the caring professions would deliver care compatible with human rights if only they did not have to contend with so many bureaucratic procedures and Whitehall top-down targets breathing down their necks. That argument is more generally pursued on the Floor of the House, so I shall not take time on the matter now, but I hope that hon. Members recognise that there is a consequence to managing the health service with such top-down targets.

I hope that the Minister will take on board our proposals for getting rid of distorting targets in our NHS. I would be interested to know when he intends to raise the recommendations with the strategic health authorities and training bodies, as he commits to doing in the Government response, and what measurable outcomes he is expecting.

Rightly, the Joint Committee also called for no discrimination on the ground of age. One specific issue that was picked up on in the Government response, which was raised by the hon. Member for Oxford, West and Abingdon (Dr. Harris), was discharge planning. The Government response to recommendations 1 and 2 showed some prevarication. We have an opportunity today to see if that prevarication can be addressed, as there were no measures in the Government response to strengthen discharge planning, which would ensure that older people’s care was not compromised.

In their policy review for the official Opposition, my right hon. Friend the Member for Charnwood (Mr. Dorrell), who is a former Secretary of State for Health, and Baroness Perry of Southwark examined the experience of Sweden and Denmark, where hospitals can charge social services for extra bed days. In Sweden, notification of patients is made immediately on admission, social workers visit wards daily and discharges are planned in four stages during the patient’s stay.

Lady Winterton, that is a system that we could usefully use in our shared county of Cheshire—we are neighbouring MPs—in which there have been plans to close nursing and care homes; plans that have left some very vulnerable people with some dramatic and at times life-threatening situations to contend with suddenly. Therefore, I hope that the Minister will be able to give some clarity and indeed commitment to taking action on the issue of discharge planning today.

The most disturbing issue regarding the empowerment of older people is the changes to, and failings of, the complaints framework. The CQC, unlike the Healthcare Commission which it subsumes, will no longer be a second-tier complaints handling body. Instead the Government intend to strengthen local complaints handling functions and pass unresolved cases directly to the parliamentary ombudsman, which initially will lead to an elevenfold increase in her work load. She is seeking extra funding from the Treasury to support her work and we can only hope that she is more successful than almost every other part of Government.

The Government have not yet told the House how much that change will cost the ombudsman. Given that the Opposition have been asking repeatedly for that information, I must say that that is something of a disgrace. How can hon. Members make the correct judgment if the Government withhold such facts from us?

Regarding the failings of the complaints system itself, the Government acknowledge those failings in their response to the Joint Committee, saying, in response to recommendation 32:

“We are sympathetic to the situation of those people who self-fund, in care homes for example, and recognise the problem. We are currently considering this issue.”

I think that the Minister sought to make that point himself, to some degree, in his intervention on the hon. Member for Leeds, North-West (Greg Mulholland), who speaks for the Liberal Democrats on the issue.

The Health and Social Care Bill Committee and Report stages showed the failings of the complaints system to be a matter of cross-party concern. The hon. Member for Tamworth (Mr. Jenkins) criticised Government policy in that area. The hon. Member for Luton, North (Kelvin Hopkins) said:

“A number of my hon. Friends, not necessarily members of the Committee, are concerned about changes in patient representation and procedures for patients making complaints in recent years.” ——[Official Report, Health and Social Care Public Bill Committee, 17 January 2008; c. 346.]

The Liberal Democrats supported those comments, as did the hon. Member for Oxford, West and Abingdon, who has just had to leave his seat, and the hon. Member for Hendon on Report, as he rightly mentioned earlier in this debate.

Therefore, I hope that the Minister will be able to clarify his own comments on the issue. Speaking in a Westminster Hall debate, he said:

“it is unacceptable that self-funders should not have the protection that other residents have”.—[Official Report, Westminster Hall, 11 December 2007; Vol. 469, c. 52WH.]

More cryptically, in September 2007—I do not have the exact date, but I am told that his comments have been verified—he told the “File on 4” programme—this shows that we listen to him at every opportunity—that he would be solving that problem through the integrated complaints procedure for health and social care in 2009, which is again cited in the Government response. However, the Minister of State, who led on the Health and Social Care Bill, and the Department, in its response to this report, did not embrace the idea of a universal complaints system, nor did they suggest that that system would be achieved through the 2009 framework. Is the Minister reneging on that undertaking or, as I fear, is he just as disappointed as all the rest of us are with his own colleagues?

Will the Minister tell us exactly how the CQC will monitor trends in complaints? There was no suggestion in the Health and Social Care Bill that the CQC would do that; indeed, the Government rejected the amendments tabled by Opposition Members that tried to achieve that very effect. With the CQC losing its complaint function, how can we be sure that the early warning signals will be picked up by the regulator?

If I may, I would like to pick up a little on a point that I made earlier. The community health councils were axed. It may be frustrating for any Government but independent trusted bodies should have entitlements to visit hospital or care settings and bring forward generically all their collective wisdom, without necessarily having to individualise it. The councils were able to see trends and put out schemes such as bed watch and deal with all the other issues, which were always a major additional source of information about what was truly going on. There seems to be a lack of ability to collate and collect that information, and to ensure that it is generally made available in reports. That was one of the concerns of the bodies that will be succeeded by the CQC; they are concerned that that information will be lost. I fear that it will be a serious loss, both to the individuals who could be affected and for policy-making purposes for all of us, unless the Minister, who I believe would sincerely like to see those matters improved, is able to take that issue up with his colleagues.

I would like to address the issue of private care homes, which was raised by the hon. Member for Leeds, North-West. Although the human rights issue is naturally all-encompassing, political and public interest has recently been most exercised by the human rights loophole under which private care homes are not bound by the Human Rights Act 1998, and can therefore evict residents without breaching article 8 of the European convention on human rights, whereas their public sector counterparts cannot do so.

It would be nice to see the Government not dragging their feet over that issue. During the debate on the hon. Member for Hendon’s private Member’s Bill to clarify the Human Rights Act, which took place on 15 June 2007, the Solicitor-General, the hon. and learned Member for Redcar (Vera Baird), who was then the Under-Secretary of State for Constitutional Affairs and who is herself a human rights lawyer, talked the Bill out rather than bringing it before the detailed scrutiny and consideration of Committee stage, which is what the Opposition wanted and urged should happen at that time. Indeed, it is still our position that that matter warrants the detailed consideration of a Committee stage because of the difficulties—difficulties that we all acknowledge—of intertwining it into all other forms of law.

The hon. Gentleman has referred to the remarks of the Solicitor-General. In fact, I recall her saying at that time that she hoped that the matter would be resolved by the end of that calendar year.

The hon. Gentleman advocates his position even better than I can, and I am most grateful that he was able to intervene. Therefore, we all doubly share in the disappointment, because we are already now in March of the following year, and that seems to indicate that there is a serious dragging of feet.

In the Westminster Hall debate on 11 December 2007, to which I referred earlier, the Minister who is present today called the current state of affairs an “anomaly”, saying that

“neither Government nor Parliament intended that publicly funded residents living in private sector establishments would not be covered by the Human Rights Act 1998. That is an unintended consequence, and we need to put it right.”—[Official Report, Westminster Hall, 11 December 2007; Vol. 469, c. 52WH.]

During the Committee stage of the Health and Social Care Bill, the Minister of State said:

“the Government are committed to ensuring that independent sector care homes are covered by the Human Rights Act.”––[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 135.]

Why will the Government not deal with that matter now? If they are truly committed to dealing with it, what is the reason for the delay?

I hope that I have put questions to the Minister in a fair manner, and I am sure that he will take the opportunity to give us specific answers to the issues raised both by myself and the hon. Member for Hendon, whom I again congratulate on securing this debate. I also congratulate him and his colleagues in the Joint Committee on producing this report. I am sure that we will see some movement on the part of the Government, but there will still be too much prevarication and, as I see it, another attempt to find sufficient long grass to kick this issue into. I look forward to the Minister dispelling such a notion, which has obviously formed in my mind, and giving specific answers to the specific questions that I have posed. If, for any reason, he is not able to answer them today, I hope that he will be prepared to let us have some answers in writing.

Let us not forget that at the heart of this debate is the care of some of the most vulnerable people in our society. That is something that all of us, and I include the Government in saying that, take seriously, as we ought to.

I pay tribute to my hon. Friend the Member for Hendon (Mr. Dismore) for his leadership of the Joint Committee on Human Rights and for his personal advocacy on behalf of some of the most vulnerable groups in our society. I have appeared before his Joint Committee to talk about the way in which the health and social care system treats older people and, recently, about the often unsatisfactory way in which it treats people with learning disabilities. Both of those inquiries have led to a sharper focus on the issues and, ultimately, will lead to significant cultural, regulatory and other changes to the way in which the health and social care system relates to older people and those with learning disabilities. He deserves tremendous personal credit, therefore, for championing unfashionable causes.

The hon. Member for Oxford, West and Abingdon (Dr. Harris) made a very constructive and fair contribution to the debate and raised an interesting point about the difference between recommendations and conclusions. Of course, if any elements of the Joint Committee’s report have not been responded to adequately, I am more than happy to have a fresh look at them.

I am delighted to say that the hon. Member for Leeds, North-West (Greg Mulholland) made a fair and balanced contribution, which is a new approach from him to these issues. I welcome that very much. I do not want to contradict him, because his contribution was extremely constructive, but he made one inaccurate comment, and it is important to the debate about the YL judgment that we get this clear: neither publicly funded nor self-funded residents in private homes are currently covered by human rights legislation. His case was that in the future both groups should be covered. He would like us to go further than simply dealing with the anomaly and unintended consequences of the YL judgment. I accept that perfectly legitimate position, but his description of the situation—that one group of residents is covered, but the other is not—was incorrect.

I appreciate the Minister’s constructive comments. I was probably not clear. I was trying to say that we must not move to a situation in which publicly-funded people in private care homes are covered, because that would move us from one loophole to another. That was my point—it was not a description of the current situation—but I accept that I probably did not make that clear.

I accept that clarification and shall come on to that issue later. We have a problem with the definition of “public authority”, which makes this quite a complex problem to resolve. Nevertheless, the hon. Gentleman made a fair point; I just wanted to clarify the current situation.

The hon. Member for Eddisbury (Mr. O’Brien) made a consensual contribution and recognised that both sides of the House feel very passionately and strongly that the rights of older people should be a priority for Government, Parliament and society. Those outside the House might demonstrate wry amusement at the fact that he is a passionate advocate for the Human Rights Act and for further regulation and legislation on this subject, in view of his proud track record as a deregulator and a severe critic of the notion of human rights legislation. I am delighted, therefore, to hear him speak so positively about the importance of such legislation and its capacity to protect older people. It seems that when human rights apply to vulnerable people, there is a common view that we as a society have a duty to look after them properly, but when they apply to other groups in society, about which there is not the same level of enthusiasm and support, people deride the whole notion of human rights. I think that we need some consistency in the debate.

The hon. Gentleman said that the Chancellor failed to mention the NHS during his Budget speech, but he referred on several occasions to the record levels of investment that the Government have made in the NHS. I understand why he did not want to hear that bit of the Chancellor’s statement, so I am happy to repeat it. I am also happy to repeat the fact that by the end of 2008 we will have achieved a historic landmark in the NHS—a maximum wait of 18 weeks from seeing one’s GP to hitting the operating theatre. Not only has there been record investment, but a major improvement has been made in people’s experiences of NHS care and treatment.

On 1 April, the most radical transformation programme in the history of social care will begin in every local authority area, with a focus on information, advice and advocacy for all and, of course, personal budgets putting maximum power and control in the hands of those who use social care services and their families. As the hon. Gentleman is fully aware, we are committed to a Green Paper on the long-term fundamental nature of our care and support system. There is no doubt that the investment and reform of the NHS and social care system is one of the Government’s top priorities. More important than priorities, the Government’s track record over the past 10 years on the NHS and social care is impressive. Older people have benefited disproportionately from that record investment, which is frequently forgotten. There has been improvements in acute care, hip replacements, cataract operations—people used to have to wait years for such treatment. Older people have benefited more than any other group in our society from those tremendous advances.

The hon. Gentleman referred to a piece of work conducted for him by the right hon. Member for Charnwood (Mr. Dorrell)—a very distinguished former Secretary of State for Health—detailing a radical transformational vision for the future of social care services in this country. It stated that we needed better and more integrated commissioning between health and social care, but that was the end of the comments on the Conservative party’s position for the future of social care, although I am sure that more will be said in the future. Nevertheless, I genuinely welcome the fact that the hon. Member for Eddisbury cares passionately about the issues before us and seeks, wherever possible, to find consensus on them.

I endorse what the hon. Gentleman said about those on the front line of delivering services. The difficulty with debates such as this is that they are usually based on a deficit model of care. We highlight all of the appalling and dreadful failings and abuses taking place. Of course, too often elderly people and their families describe those circumstances to us and we have a duty to act. Equally, however, every day of the week, in every community, people on the front line of NHS and care services do an extraordinary job, frequently in very difficult circumstances. We should make that clear when we talk about our overwhelming responsibility to improve the system and to ensure that cases of neglect, abuse and poor care continue to be minimised.

Politicians accept the notion that the great national and international challenges facing us are climate change, the effects of globalisation and fundamentalist terrorism, but very few people acknowledge that demography should be up there as one of the top four or five public policy challenges facing our society and those in many similar countries. People are now living longer, which means that more people have complex conditions such as dementia. Furthermore, people have very different expectations. These days, the vast majority of people, given an authentic choice, want to remain in their own home rather than enter institutionalised care, whereas, perhaps 20 years ago, our parents or grandparents were resigned to the fact that they would live to their 60s, if they were lucky, and spend the latter part of their life in institutionalised care.

Members of the baby boom generation are increasingly concerned about those issues, not only because of self-interest and worries about their own future, but because they are coming into contact with the health and social care system through the experiences of their ageing parents. Frequently, those sons and daughters find the system frustrating, particularly the division between health and social care. They also find that their elderly parents are not treated with the respect that we would like. I have set a test; people should ask, “If the care is not good enough for our mothers and fathers, why should it be good for somebody else’s?” That simple test should be applied to every NHS ward, nursing and residential home and domiciliary and day care service.

The NHS and social care systems do not function in isolation from the rest of society. We have a deeply negative culture and attitude towards older people in society generally, and it is frequently reflected in the NHS and social care systems. I am a great believer in the human rights legislation being the starting point for, and the heart of, health and social care thinking, systems and policies, but even if we had a utopian application of the Human Rights Act 1998 in its strictest sense, we would still need to address some major cultural and attitudinal issues. Older people are not just passive recipients of our sympathy; thankfully, they make a tremendously positive contribution to their communities and our society, and we should highlight it far more.

Several issues were raised in today’s debate and in the report. First, I shall describe what the Department of Health is trying to do internally to ensure that human rights have a far more significant role in the development of policy. The hon. Member for Eddisbury referred to better policy-making guidance for officials in the Department. The guidance includes clear references to a human rights perspective and the consequences of human rights legislation. The impact assessment process is relevant to all policies, and equality is an important part of that. Part of equality is human rights and the human rights legislation. The Department is also working on a human rights e-learning tool, which will be available in the autumn. The tool is designed to make people far more aware of the position of human rights at the heart of development and training.

I shall deal with the Department’s ability to influence change on the ground. First, on the YL judgment, there is absolutely no doubt that Parliament and the Government intended publicly funded residents of private homes to be covered by the human rights legislation. As a consequence of a court judgment, they are not, but the Government are absolutely determined to ensure that the original intentions of Parliament and the Government are restored. The question is how do we best do that in terms of the legislative process? Discussions are active and ongoing between myself and ministerial colleagues in the Department of Health and the Ministry of Justice, and we will be able to make clear to hon. Members in the near future how we intend to correct that anomaly.

The hon. Member for Leeds, North-West expressed some concern about self-funders. Correcting the YL judgment would deal simply with people who were publicly funded, but because social care is a means-tested system, an increasing number of people are self-funders. Owing to the implications of the original focus of the Human Rights Act, it is much more difficult and complex to extend the correction of that anomaly to self-funders, because we would then get into a situation involving the definition of “public authority”. On the sentiment, however, we have a responsibility through whatever means to ensure that in a means-tested system, self-funders have far greater protection—even though it may be difficult to do so through human rights legislation.

A major part of the social care reform programme that will begin in every local authority area over the next three years will be an end to the “no help here” culture, in which people who fund themselves, or their families, are essentially left to navigate the care system alone. The transformation programme seeks to commit local authorities no longer to have a “no help here” culture. Depending on its implementation and delivery, I think most people will welcome it.

The hon. Member for Eddisbury rightly raised the right of people to complain beyond the organisation or provider about whom they are complaining. The difficulty is that if people are publicly funded recipients of care, they can go to the local authority, use its complaints procedures and ultimately go to the ombudsman, but if a self-funder wants to make a complaint, they can go only to the provider against whom they are making the complaint; there is no independent vehicle or organisation to which they can turn. We must do something to address that anomaly, and officials are considering the issue. I am not able to tell the Chamber the solution that we have come up with, but we must create a level of independence for self-funders when there is nowhere for them to go other than to the organisation against which they are making the complaint.

The Government remain committed to minimising mixed-sex accommodation in the health service. This year in the NHS operating framework, we have set stretching targets for every strategic health authority and primary care trust to minimise mixed-sex accommodation. We have made much progress over the past 10 years, but not as much as we had hoped, and the only difference of emphasis is the definition of mixed-sex wards versus mixed-sex accommodation. My colleague Lord Darzi made it clear that he thought the term “mixed-sex wards” was an error and we should not have made a commitment to abolish them because it is unachievable. However, we remain committed to the minimisation of mixed-sex accommodation in the health service, and we have made it clear to the NHS locally that we expect it to be a priority where there has not been as much progress as we expected.

Premature discharge is a very difficult issue, because if older people are in hospital for a prolonged period unnecessarily, all the evidence suggests that their mental and physical health deteriorates. The challenge is to ensure that we have in every community an appropriate range of provision—intermediate care, step-down care, proper domiciliary and day care services—and the appropriate relationship between the local NHS and local government, so that, from the point of view of patients and carers, that Berlin wall does not get in the way.

As my hon. Friend the Member for Hendon said, it is important that we get the issue right for individual patients and in individual circumstances. It is irresponsible to discharge people when they have not fully recovered or into a care setting that is not appropriate to meet their needs. Overall, however, it would be a mistake to take the pressure off the policy of getting people out of hospital as quickly as possible, because from my experience of my relatives and other older people, the longer they remain in hospital, the less likely they are to make a full recovery. But that depends on our having appropriate alternative provision available.

I certainly think that that approach to discharge is the right one; I do not dissent from it. Our concern was that without a degree of flexibility, either in the rules or elsewhere, that ideal will not be reached. We recommended guidance from the Department that would effectively put in black and white what my hon. Friend just said. Will he consider whether it would be appropriate to produce such guidance?

What is appropriate is that people implement best practice in care. If we need to clarify that, I am certainly willing to do so, but I would not want to give any impression that we were returning to the days when older people were left to languish on acute NHS wards, entirely inappropriately, for long periods, which led to a deterioration in their mental and physical health. We can certainly consider how to make it clear what best practice is.

I shall run quickly through some other relevant changes that we are making. In terms of messages to the NHS, we have issued “Human Rights in Healthcare”, a framework for local action. In guidance on how NHS trusts should implement equality schemes, we have included age, even though there is no legal requirement to do so. As for the regulators, the Healthcare Commission and the Commission for Social Care Inspection have approached their regulatory responsibilities with a strong human rights focus, particularly CSCI when making judgments about the quality of social care provision. In respect of the new Care Quality Commission, there will be new provider registration requirements from 2010. We will consult on those and make it clear that the convention on human rights should be a significant guide for the new requirements under the commission.

On the training of front-line staff, we are bringing together regulators and providers of education and training at an event in April at the Equality and Human Rights Commission, specifically to consider those who have the most influence over the training of leaders, managers and front-line staff. We want to talk to them about how the content of training can more appropriately reflect human rights legislation and a human rights culture. We will hold a similar event in May, but it will be aimed at front-line staff, leaders and managers in the health service and social care system.

I should like go into more detail about the other levers that will make a difference to achieving the aims of the Human Rights Act. I shall just reel those off before bringing my remarks to a conclusion so that my hon. Friend the Member for Hendon can speak. I believe that world-class commissioning should make a major difference in securing human rights. I believe that our national campaign to put respect for dignity at the heart of health and social care is making a difference, and I shall announce the extension of that campaign soon. I believe that the development of CSCI standards towards star ratings will make a difference, as will the development of a national dementia strategy this year.

The roll-out of psychological therapies means that older people in every part of the country will have much greater access to such therapies. The new deal for carers, which will be announced by the Prime Minister later in the spring, will hopefully lead to major changes in the experience of family members, who are often not treated as we would like them to be treated by the health and social care system. Equally, caring itself has an impact on the health of carers, and we need to consider that as part of the new deal.

I have referred to the transformation agenda in social care. Putting more power and control into the hands of the people who use the system through personal budgets and greater information, advice and advocacy is far more likely to lead to packages of support consistent with the Human Rights Act 1998 than the historical or traditional way of providing services. We are reviewing the entire system of adult protection in this country, and that review will cover the way in which vulnerable adults are protected by the health, social care and criminal justice systems.

I have mentioned the Green Paper on the future of the care and support system, and my colleague Lord Darzi is in charge of a review that will ask, “Having fixed the foundations of the national health service, how do we move towards creating a world-class health service?” Creating a world-class health service involves more than just celebrating the fact that most people in this country are very satisfied with the quality of clinical care that they receive from the NHS. People are nowhere near as satisfied with the personal care that they often get on NHS wards, for example, and that is particularly relevant to older people, and to customer care. As well as improving clinical care in the NHS and the relationship between the NHS and social care over the long term, it is incredibly important that we improve the personal care, not just the medical care, that people receive, in the NHS.

We are also considering a new constitution for the NHS, with a focus on rights and responsibilities for both staff and patients as well as on greater accountability to local communities when making decisions about the NHS than may have been the case in the past. Culturally, there has not been the same openness in the NHS as in local government and other public services, so we need to consider what mechanism we can introduce to make the system more accountable and give patients and communities more power and control over the decisions that are made and the services that are developed.

My hon. Friend has touched on most of the issues that I raised, but I should like to ask him about two in particular. One is the British Institute for Human Rights pilot. When will the evaluation be completed, and when will the subsequent roll-out happen? The other is the whistleblower duty. Will that be included in the care standards regime?

On the new regulators’ duties and whistleblowers, I cannot give my hon. Friend a definitive answer, as we are considering the issue at the moment. However, the new standards will be put out for consultation. It is certainly one of the issues that I am considering. Ipsos MORI has been commissioned to conduct an independent evaluation of the pilots. Once we have received it, we will decide how to mainstream them through the national health service. We want to look at best practice and the trusts that have operated a human rights approach, then consider the implications of mainstreaming that approach throughout the health and social care system.

This debate has demonstrated that the Select Committee’s report has led to significant change. The human rights debate in health and social care has been given much more serious attention than before, but I say to my hon. Friend the Member for Hendon and other hon. Members that we still have a considerable way to go. Part of it will involve legislation and regulation, but some of it involves cultural and attitudinal change.

I shall not say a great deal, because we have had a good debate. I appreciate my hon. Friend the Minister’s approach. He will receive a letter to remind him of those of our findings that were not recommendations.

I think that the question of the YL case has been troubling for everybody. The problem is that the Human Rights Act applies only to public authorities; a lot of people do not know that. That is where the difficulty has arisen. The Committee argues that, at least in the short term, we should return to where we were, or where we thought we were, before the YL case, so that publicly funded people in private or voluntary sector care homes have the protection of the Human Rights Act, which should be directly enforceable by residents, if necessary, against providers. The present post-YL system makes enforcement extremely indirect and difficult. We want direct enforcement.

The wider issue of whether privately funded people should be included is more complex, partly because that was not what was originally intended by the Human Rights Act. It also raises wider issues about what is known in the human rights trade as horizontality—the right of private citizens to enforce rights against other private citizens or private bodies. That is why it raises significantly wider issues in relation to the human rights debate and, ultimately, the debate about the Bill of Rights. That is not to say that private funders should not have additional protections, but it is another question altogether whether that can be done through the YL reform mechanism. There is an argument that because there is significant state regulation of private sector care homes, they are therefore brought within the public authority definition. However, that is a complex and convoluted legal argument, and I shall not go into it in detail.

When the Committee was considering what amendment to the Health and Social Care Bill to propose on Report, we thought it better to go back to where we were before YL and let the arguments about private funders be resolved differently. As my hon. Friend the Minister has said, we should try to find better ways of protecting them without getting bogged down in the Human Rights Act. The problem has to be dealt with differently, because private provision goes far beyond people in care homes: it concerns adults with learning disabilities and people who receive publicly funded education in private schools. A whole range of additional services could be affected, so the issue is much wider. My Bill would refine the definition of a public authority to include such service providers. If we are to go beyond that into private enforcement by private individuals against private companies or people, it would involve a much bigger human rights argument, which has to take place in the wider context of the Bill of Rights debate. We want private funders to be protected, but not in that way.

The hon. Gentleman and I are both trained lawyers, so there is grave danger of our getting into a luxurious debate as lawyers. He has put his finger on what is relevant: we must consider the restricted area of amendment, because to go down the private-to-private route would invade privity of contract. That could create a difficult legal position, leading one into the equivalent of tort and duties of care. I must correct the Minister on one issue: the invocation of the Human Rights Act presents problems, which is why both parties are talking about a Bill of Rights, under which one could have rights, responsibilities and duties, and which would make duties in the private sector enforceable. Under the Human Rights Act, that is difficult both as a legal concept and in terms of society.

I have listened to the hon. Gentleman. The Committee will produce a report on the Bill of Rights debate in which we will discuss social and economic rights, although I do not know what conclusions we will reach. We will also discuss horizontality, or private enforcement against private bodies. That issue concerns much wider arguments and debates than apply here. The important thing today is that we hold the Government to their commitment to turn the clock back, and put the law back to what everyone thought it was before YL, when the House of Lords got things wrong.

I accept that there is a legal debate, but I am not a lawyer, so I cannot contribute to that debate. I acknowledged in my speech that there are challenges in trying to adapt the Human Rights Act in this case, but does the hon. Gentleman agree that the general public will find certain situations hard to accept? For example, if two people are in the same care home and one of them has been means-tested and is publicly funded, whereas the other does not qualify and has to pay, that may mean that one of them is covered by the Act and one is not. Never mind legal reality, common sense says that that simply is not fair.

I am afraid that people in more or less equivalent positions often have vastly different rights. There are many examples of such situations. I should like everyone to be protected by the Human Rights Act in every circumstance, but that cannot be done through the mechanism that the hon. Gentleman advocates. I do not want to get into a completely different debate, especially as it would get very technical, but the Act is there to protect people who receive services from public authorities. As a result of the YL case, a private care home is not a public authority. We can correct the problem for publicly funded recipients of care services, because they were originally intended to be covered by the definition of a public authority. Indeed, there are several mechanisms by which we can make that change, and the Government will have to choose which mechanism to use. The difficulty arises when we try to bring into the equation self-funders, who have no direct relationship with the state, because that means trying to make the Act do something that it was never intended to do—protect self-funders in relation to private providers.

There is a convoluted argument that if there is significant state regulation, that is sufficient to make something a public authority, which it would not otherwise be. I am not entirely convinced by that argument, although I see where those who make it are coming from. In the interim, we have to find another way of protecting self-funders, which is what the Government are trying to do. In the long term, we must reform the definition of public authorities so that everyone who receives public services is covered, not just those in care homes. I gave examples earlier of others who might be covered. That is reform No. 1.

Reform No. 2 concerns the wider issue of horizontality, or the extent to which human rights should be directly enforceable more generally, outwith the issue of care homes, between private individuals or between private individuals and companies. That is a wider argument, and it falls within the much bigger debate on the Bill of Rights. There are therefore three different stages: sorting out the YL case in relation to care homes, sorting it out in relation to the wider recipients of public services, and sorting out the general issue of those who receive privately funded services from private organisations.

Each of the three stages has a different solution. In the meantime, we must try to find a way of protecting private funders in care homes through other mechanisms, giving protection that is equivalent to human rights protection. In the report, we discussed whether it would be possible to provide better protection against eviction, not necessarily within the context of the Human Rights Act, but under landlord and tenant law. The issue is one where non-lawyers might fear to tread—

Indeed. The more one gets into it, the more complicated it becomes. That is why the Committee decided to propose a relatively narrow amendment to the Health and Social Care Bill to return the position with care homes to how it was before YL. That is the cleanest way of dealing with the matter in the interim. There are wider issues to be addressed, but not by using the Bill. Other things can be done to provide those protections, without necessarily involving the Human Rights Act. The issue is very complicated.

I agree with my hon. Friend the Minister that demography is one of the great challenges facing society. When he spoke about policy-making guidance and the impact assessment, he said that human rights are part of the equality duty, but it is the other way around. Human rights provide all-embracing, universal protection, of which equality is one element. He might like to reconsider that point. The hon. Member for Oxford, West and Abingdon (Dr. Harris), who is an active member of my Committee, talked about the need for NICE to have a positive duty to promote human rights, and I do not disagree with that point. He also spoke about quality-adjusted life years, which we should discuss in more detail in future. Once we started to tackle that subject, we realised that it is incredibly complicated. The hon. Member for Leeds, North-West (Greg Mulholland) talked about the duty of confidentiality. That issue is important, and it is raised in our report.

The hon. Member for Eddisbury (Mr. O'Brien) raised several important issues. He also echoed my tribute to all those who do good work. As my hon. Friend the Minister said, it is important that we do not forget that many people do a lot of good work in difficult circumstances. When we focus on aberrations, that should not take away from their work. We need a rights-based approach from the new commission, as the hon. Member for Eddisbury said, and I am sure that we will keep returning to that point. The YL case is a thorn in the side of everyone who is involved in this business, and I hope that the Government will propose their amendments when the Bill starts its progress through the other place.

Question put and agreed to.

Adjourned accordingly at twenty-one minutes to Five o’clock.