Thursday, 3 April 2008

Health and Social Care Bill

A spy has pointed out to me two articles in the Solicitors Journal, 'Human Rights Act extended to cover residents in private care homes' and 'Form and Function', which cover proposed amendments to the Health and Social Care Bill which will reverse the decision of the House of Lords in YL v Birmingham as far as private care homes are concerned. I wrote about this way back when, and I think that this is only part of the answer and one of the politically easier options for the Government as it avoids tackling tricky issues about the wider reach of the HRA. It's worth noting that the Department of Health press release does contained buried away in the notes to editors this little gem:

"The Government is also considering how to address the wider question of the scope of the Human Rights Act, and has undertaken to consult on this issue."

All in all, it's a step in the right direction as far as I'm concerned, but cannot be seen as the end of the road.


geeklawyer said...

I understand that the position will remain at the status quo for private residents of private care homes but not for publicly funded ones. Which seems odd: two patients in identical circumstances have rights based on who pays. I hope I've misunderstood (and not read the links properly!) but if so it does seem odd.

The Chief said...

I didn't make it clear in my post (meaning I forgot to make any comment on it at all), but you're right. It was one of the reasons why Lord Mance wouldn't allow the appeal in YL - see 117-119 for instance. No easy answer to this.

Nearly Legal said...

Indeed no easy answer, even though this would have been the practical result of YL. At least that would have been part of a broader judicial consideration of the application of the HRA.

Legislation on one 'exception' or specific situation, which very likely not have broader effect. doesn't strike me as a good way forward.

The Chief said...

NL, I agree that this isn't the ideal way forward. I'd be concerned about a number of things, such as the knock-on effect on similar situations which may be considered to be outside the reach of the HRA because they don't have an individual legislative 'opt-in'. Then we get back to the nasty problem of a long list of 'functions of a public nature'. I see the current proposal as a step in the right direction in that it solves the immediate YL problem and indicates that the broader application is being considered. I simply don't see that there is the political will for the full consideration now and therefore the Health and Social Care Bill is the only way of bringing ss 21 and 26 of the National Assistance Act under the HRA for the time being. Not ideal, but not an awful way forward.