House of Commons - Report Stage
Briefing One - Briefing in support of New Clause 11 - provision of certain care and support services to be a public function under the Human Rights Act 1998
New Clause 11, tabled by Paul Burstow MP and supported by Liz Kendall MP and Andrew George MP, seeks to give clarity in the application of the Human Rights Act 1998 (HRA) to regulated social care services that are publicly funded or publicly arranged.
In the Commission's analysis, the new clause would achieve this clarity, by confirming that the provision of publicly funded or publicly arranged social care by a private or third sector organisation is a 'public function' for the purposes of the HRA. This approach was recommended by the Joint Committee on Human Rights in its recent legislative scrutiny report on the Care Bill.
New Clause 11 does not seek to replicate Clause 48, which was inserted into the Bill following an amendment tabled in the House of Lords which was subsequently removed in the House of Commons, but to replace it with a narrower provision that would extend only to social care that is publicly funded and arranged.
New Clause 11 would provide people using publicly funded or publicly arranged home care with direct legal redress against their provider for any human rights abuses that are the provider's responsibility. However, the clause would do more than provide a legal entitlement that could be enforced in the courts. In the Commission's analysis, clarifying the HRA in this way would also encourage providers to build a human rights approach into service delivery, helping to drive up standards in the social care sector.
Briefing Two - Briefing in support of New Clause 1 - Adult safeguarding access order
New Clause 1, tabled by Paul Burstow MP, seeks to introduce a power of access that would enable an authorised officer of the local authority to apply to a Circuit Judge authorised by the Court of Protection for an adult safeguarding access order in relation to an individual living in the local authority’s area.
The Commission’s analysis of the Care Bill suggests that the human rights of persons at risk of abuse would be better protected by amending the bill to provide a power of entry for local authority representatives, where a third party is refusing access to a person who is thought to be at risk of abuse and neglect. A power of entry with appropriate safeguards, combined with the proposed duty of local authorities to make enquiries, would enable more effective interventions in response to allegations or suspicions of abuse and neglect. The Commission therefore supports the amendment of the Care Bill to include the clause “Adult safeguarding access order” as drafted.
Briefing Three - Briefing is in support of the proposed amendment to Clause 90
The amendment to Clause 90 has the effect of requiring the Care Quality Commission (CQC) to conduct regular performance assessments (periodic reviews) of local authority adult social care commissioning.
The Commission’s analysis is that the human rights of people receiving care would be better protected by including provisions in the Care Bill requiring CQC to conduct regular periodic reviews of local authorities’ commissioning of adult social care.
As currently drafted, the Care Bill provisions mean CQC will only be able to conduct periodic (routine) reviews of adult social care providers, but not of commissioners. This would leave a central element of the social care delivery system without regular independent scrutiny.
In our analysis, routine reviews would raise the standards of adult social care commissioning practices and would result in higher quality services which better protect the human rights of care service users.
Last updated: 05 May 2016