Bed blocking bill breaches Human Rights Act

12.01.00am GMT Tue 10th Dec 2002

Paul Burstow MP, Liberal Democrat Shadow Spokesman for Older People, will today (10th December 2002) accuse the Government of breeching the Human Rights Act with its Community Care (Delayed Discharge, etc) Bill.

The Bill gives the NHS the power to fine social services departments for so-called bed blocking of older people in hospital wards. Mr Burstow will argue during the Committee Stage of the Bill that the Bill breeches Articles two, six and eight of the Human Rights Act.

Paul Burstow said:-

"The Human Rights Act makes it unlawful for the Government to legislate incompatibly with European Convention on Human Rights, and yet that is exactly what Ministers are trying to do. The Bill not only fails to tackle the problems of delayed discharge but also treats older people in an inhumane and unlawful way.

"It is time that Milburn wakes up to the reality of chronic underfunding and staff shortages and tackle the causes of delayed discharge rather than the symptoms. The Government must go back to the drawing board with this Bill and put older people at the heart of a workable solution to delayed discharge."

Ends

Notes to editors

The Committee Stages of the Delayed Discharges (Community Care Bill) will be debated today (Tuesday 10th December) at 10.30 and again at 4.30pm.

Mr Burstow disputes the compatibility of the Delayed Discharge Bill for the reasons set out below:-

Article 2 - Right to life/freedom from inhuman and degrading treatment

The lack of adequate safeguards to ensure against a patient being discharged when they are not in a fit condition raises the possibility of putting patients life at risk by premature discharge. Bundling a very vulnerable, sick person into the back of a minibus etc to meet targets under a statutory delayed discharge policy may raise issues under this article.

Article 6 – Right to a fair and impartial hearing

Section 6 of the Bill discusses disputes between local authorities and NHS bodies over who is responsible for the patient. The proposed dispute panels appear to be a new form of administrative tribunal, and therefore subject to article 6 rights Salesi v Italy. How long will this process take place? What will happen to the patient in the meantime? How will the panel's independence be ensured? Leaving the issue of the panel's form and jurisdiction to regulation is surely inadequate in view of article 6.

Article 8 - Right to private and family life

Delayed Discharge period

The patient has now to make a major decision as to where one is going to live for the rest of ones life, within three days. Whatever is said about the patient being able to move on after - that this will be the reality of the situation for vast numbers of disabled people. The Coughlan case makes it clear that decisions of this type are in direct contradiction of this article.

Strain on Carers

(i) The bill fails to provide for procedures which will support and include carers in consulting upon discharge; although the Hospital Discharge Workbook which sets out good practice is being updated, it is unlikely that this will provide carers with the protection they need because it lacks the force of law; carers are likely to be forced to take home their relatives/partners prematurely.

(ii) The Government is proposing to exempt disabled people from charges for intermediate care, but keep the power to charge carers; the impact of the current drafting would mean that for an identical service, a carer would be charged where a disabled or older person would not be - this form of discrimination in law between patients and carers rights, although not placing any extra burden on carers, might be covered.