Peers introduce an amendment to close a human rights loophole in social care

I was interested to see that peers Baroness Greengross and Lord Rix have introduced an amendment to the Health and Social Care Bill that would address certain loophopes in the protection offered by the Human Rights Act to people in receipt of care services.  Almost certainly, this amendment is in response to the Equality and Human Rights Commission (EHRC) report 'Close to Home', which expressed serious concerns about the human rights protection of older people receiving domicilliary care services in their own home.  The EHRC have called for the closure of a legal loophole, which means that private domicilliary care providers are not 'public authorities' in the meaning of s6 Human Rights Act 1998 (HRA) which, in essence, means they can't be litigated under the HRA by service users for violations of their human rights.  I've explained previously how this loophole came to exist, and it's good to see peers and the EHRC taking action on this.

In previous years, several different bills or amendments have been proposed and abandoned that would close the loophole in the protection offered by the HRA for social care service users (see this post, and this, for discussion).  The only amendment that was actually passed, in the end, was under s145 Health and Social Care Act 2008, which left several groups of social care service users outside of its protection - including, but not limited to, users of private domicilliary care services.  The amendment proposed by Greengross and Rix looks like this:

Insert the following new Clause—

“Human Rights Act 1988: provision of certain personal care and health care services to be public function

(1) A person who is commissioned to provide—

(a) personal care to an individual living in their own home, or

(b) a health care service,

shall be taken to be exercising a function of a public nature in providing such a service.

(2) In subsection (1)(a) “personal care” in relation to England has the same meaning as in paragraph 2 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 and in relation to Scotland has the same meaning as “personal care and personal support” as defined in section 2(28) of the Regulation of Care (Scotland) Act 2001 and section 1(1)(c) and Schedule 1 to the Community Care and Health (Scotland) Act 2001.

(3) In subsection (1)(a) and (b) “functions of a public nature” has the same meaning as in section 6(3) of the Human Rights Act 1998 (acts of public authorities).” (Amendment 217A)

Notably, the amendment would cover everyone who received personal care from a domiciliary care service user - both publicly funded and privately funded alike.  It wouldn't only cover the kinds of domiciliary care services for older people described in Close to Home, but also 'supported living' style services for younger adults.  It would also cover domiciliary care funded through direct payments (although I'm not clear if it would cover individuals working as personal assistants?).  However, interestingly, it hasn't sought to remedy other existing loopholes in social care.  The Health and Social Care Act 2008 amendment only provided for people placed in residential care under the National Assistance Act 1948, but many people might be funded in residential care under other Acts - for example, they might be funded under s117 Mental Health Act 1983.  It also wouldn't cover other kinds of private social care providers, for example children's care homes or residential schools (I do wonder if that's why it's the local authority, not the school, who are litigated in this case?).  So the amendment is an interesting one, as it would make a private domiciliary care provider a 'public authority', even if it was providing care under private arrangements where there was no involvement of a public authority.  Meanwhile, some people who receive publicly funded social care services, might not be protected.  I am unclear whether this is deliberate, or whether there were some other reasons for not including residential care services in the amendment.

Closure of human rights loopholes in social care face two key difficulties:

1. If they are only meant to cover publicly funded service users, it would require legislation that could somehow pick out this group, which is no mean task when care could be provided under any of a large number of statutes.   It's also important to remember that a person could be in receipt of privately funded care, arranged through the state.  For example, a person might end up living in a private care home and funding it themselves because of an order of the Court of Protection or under the deprivation of liberty safeguards (see, e.g., this case where a person was forced to pay for their own detention under the DoLS).
2. They are likely to encounter ideological arguments around the 'privacy' of social care providers.  This amendment makes no attempt to distinguish public from private, but I suspect this may be a factor that sank previous amendments which would have made any regulated provider a public authority in the meaning of the HRA.  

I personally think it would be desirable to see all care providers covered by the Human Rights Act, because there are many diverse issues that arise in social care that are hard to capture in law in terms other than 'human rights'.  I appreciate that this engages all kinds of arguments about horizontality in human rights protection, and there are issues about providers that would be public authorities consequently having limited rights protection of their own.  This would no doubt spark all kinds of debate among human rights theorists and constitutionalists, not to mention exercising care industry lobbyists.  But I wonder how else we are to protect people's rights in the details of their day to day lives, that can be vulnerable in such a diversity of ways in social care?  Of course, the CQC's essential criteria include that people's 'rights' must be protected, but I have never been clear what this means in the context of some care service users having more legal rights than others, because of these loopholes.  I suppose the only way this could be tested would be if a care provider appealed against enforcement activity taken by CQC on grounds that people's rights were being violated, but in response to a recent Freedom of Information Act request they confirmed that no such case had yet arisen.  Likewise the Local Government Ombudsman (LGO), who hears complaints about care providers.  However, I am sure the CQC and the LGO, as human rights public authorities in their own right, would take equally seriously any human rights issues that arose for privately or publicly funded residents in the course of their duties.  The key question here is - can they be litigated through the courts?

In any case, the amendment's future is linked to the fate of the Health Bill, and things don't seem to be looking very good for it at the moment...