‘Hundreds of thousands’ in need of care denied human rights protection

In a Report published on the 27th Jan 2014, the Joint Committee on Human Rights says that the Care Bill must ensure that all providers of publicly arranged or paid-for social care services are bound by the Human Rights Act.

Dr Hywel Francis MP, the Chair of the Committee, said:

“Whilst acknowledging the measures in the Care Bill which will enhance human rights, my Committee regrets the Government’s reluctance to fill a significant gap in human rights protection for a particularly vulnerable group. The Human Rights Act currently does not protect hundreds of thousands of people who are receiving care which has been publicly arranged or paid for, including care provided in people’s own home and in some cases in residential care homes. The Care Bill which is currently before Parliament should be amended to ensure that this gap in protection is urgently filled.

However, the government has won a vote to block an extention of the Human Rights Act 1998 to people who pay for their own care or use independent home care agencies. Norman Lamb argues people can challenge their provider through their contract. Therefore inequality to protection under the Act will persist.

The Human Rights Act (HRA) 1998 makes it unlawful for public authorities to act in breach of the fundamental rights and freedoms set out in the European Convention on Human Rights. Problems have arisen as original definitions of what constituted a ‘public authority’ were too narrow and excluded private and voluntary sector providers leaving many individuals outside of the protection offered by the Act. This loophole has been partially addressed in the Health and Social Care Act (2008). Section 145 of the act provides that individuals placed in an independent care/nursing home by a local authority are covered by the Human Rights Act 1998. To be covered the service user much be placed in residential accommodation under Part III of the National Assistance Act 1948. However, section 145 does not confer human rights obligations on other independent care providers contacted by the local authority, therefore, independent domiciliary care agencies will continue to fall outside of the Human Rights Act 1998. This amendment did not address the issue of individuals who receive publicly arranged social care in their own home, for example, by personal assistants employed under direct payments or as part of an individual budget. Therefore working in a manner consistent with human rights in an individual’s home is left to the discretion of the provider. The Care Bill provided an opportunity to rectify this.

The need for change was well made by the British Institute of Human Rights in 2008 when it suggested individuals receiving care services in their own homes are vulnerable to abuse. The BIHR argue that ‘those who remain outside of the HRA have no direct legal remedy under the Act against those providing care. Consequently, they are unable to directly challenge these shocking abuses as violations of their human rights’ (p3). The potential impact on the quality of care provided by these individuals is made explicit when the BIHR states ‘of equal importance is the fact that these providers are not given any encouragement to develop a culture of respect for the human rights of their vulnerable service users’ (2008, p.3).

Whilst it would be easy to dismiss such concerns as old news, more recent findings suggest little has changed for some. The Care Quality Commission (CQC) first expressed their concerns regarding unacceptable standards of care provision in individuals own homes in their State of Care report published in 2012. Whilst CQC was able to report on significant improvements within provision in a subsequent report on home care provision in 2013, ‘Not just a number’, it found some care still fell below the standards those who use services have a right to expect, especially for those individuals with complex needs and dementia.

We currently have a two tier system of care provision where some users of services are entitled to have their human rights protected, as conferred under the Human Rights Act 1998, whilst others are excluded in the name of the free market.

Surely recent experiences tells us the protection of those most vulnerable cannot be left to the free will of the market?

Adhering to the spirit of a ‘duty of candour’ is essential for cultural change in the NHS…….

A year on from Francis and the ‘C’ word dominates!

The Care Bill is at committee stage at the time of writing, at its 10th sitting. Minutes from CQC’s public board meeting on the 22nd January 2014 state David Behan gave evidence to the ‘Duty of Candour’ review on the 9th January, followed up by a letter on the 16th January 2014. At that review David Behan expressed CQC’s view that the threshold should be set to include death, serous injury and moderate harm, to be consistent with the guidance published in the ‘Being Open Framework‘ and CQC’s interpretation of the term ‘serious’ in Robert Francis’ recommendations.

On the 23rd January 2014 the House of Commons Public Bill Committee published its’ latest amendments. One related to the ‘duty of candour’. Clause 80 on page 72, line 20, now reads

‘The duty of candour specified in regulations made under this section shall require
healthcare service providers who believe or suspect that treatment or care
provided or contributed to death or serious injury to a patient…..’

It appears the committee chose to ignore CQC’s views as ‘moderate harm’ is not included.

From my perspective this makes little sense and does not demonstrate an understanding of the potential of thresholds to provide not just openness in an organisation but also a preventative strategy. Surely enabling individuals and organisation to speak up if they identify moderate harm may then prevent serious injury, or even death?

Whilst a duty of candour is welcomed , I wonder now is the threshold set too high to really change the ‘culture’ Robert Francis identified as contributing to poor standards of care at Mid Staffordshire.

Thresholds can be effective as a preventative mechanism, but not if they are set too high or used as an administrative convenience to ensure the number of reports are kept at a manageable level for the organisation, which is surely counter productive to changing the ‘culture’ of any failing provider of care.

I am currently undertaking some developmental work around dementia care at Plymouth University, exploring the relationship between thresholds and prevention in terms of Safeguarding Older People amongst other things, and came across a quote this week which I found very pertinent in regards to how government policy/legislation translates into frontline practice

‘To assume that an official plan and its implementation in practice are the same is to fly in the face of facts. Invariably to some degree, the plan as put into practice is modified, twisted and reshaped, and take on unforeseen accretions’ (Herbert Blumer)

Hmmmm……….

To change the current culture within some care provider organisations will require far more than the Care Bills ‘Duty of Candour’, it will require 100% commitment from all involved to adhere to not just the letter of the law but the spirit. I do believe this is a positive step forward, however, Government needs to take an active lead, and listen to people like David Behan, to ensure it is implemented to change organisational priorities at the highest level, otherwise the ‘duty of candour’ risks becoming just more empty words and another box to tick.

Mr Gove is not just making arrangements to hide problems with ‘free’ schools policy, plans are in place to ensure Frontline is a success…whatever happens…

As Mr Gove’s plan to ensure problems with ‘free’ schools do not become an election issue are exposed, Mr Gove appears to have already put plans in place to ensure Frontline is a success, whatever the real outcome…..

Josh MacAlister has established links with the Civil Service Fast Stream for Frontline participants who decide they do not want to be involved in direct social work practice. So those who do 2 years can go straight into policy/government!

So much for addressing the major issue of retention in social work practice then!

I first blogged on this issue in September last year, since then Frontline has become a reality. None of us know for sure how this will turn out, some, like me, think we have a good idea.

This will be a costly experiment that will do little to address the real issues facing social workers working with children and families.

This belief is based partly on my knowledge of the profession, in terms of practice experience, and my experience of educating social workers and listening to their experiences and concerns. Another source of information on which to gauge the likely success of Frontline has been Teach First, the blueprint for Frontline. Teach First came to fruition due to issues about the quality of teachers coming through the education system and issues around the retention of teachers. Having been in existence for over a decade now I think it’s useful in identifying where Frontline might end up.

Recent reports suggest Teach First high flyers are already leaving teaching due to Gove’s bullying education policies. Interestingly in an interview late last year with a magazine from Cambridge University Josh MacAlister stated he has already prepared the ground for those high flyers who want to fly a lot higher than working with children and families. MacAlister has established links with the Civil Service Fast Stream for Frontline participants who decide they do not want to be involved in direct social work practice. So those who do 2 years can go straight into policy/government! So much for addressing the major issue of retention in frontline practice then! Whilst another report suggested Universities are the best place to train teachers. I wonder if in a few years the same might be said of social work education?

The findings that are beginning to emerge from Teach First are, in my view, troubling for Frontline but not unsurprising. May be it is time to get back on track and focus our efforts and funding on implementing, in full, Professor Eileen Munro’s recommendations, rather than the introduction of another educational route. I do think social work requires change, but I also believe the problems Frontline are seeking to address are not solely related to social work education. For me structural change in the way services are delivered and resourced is far more important. As is tackling issues such as inequality,poverty,poor housing, unemployment and low wages which would make the biggest difference to the lives of the families many social workers are in contact with, rather than having a social worker with a good degree from a top university.

One final note, I rather liked a comment made by the interviewer of Josh MacAlister at Cambridge, after he had made much of the importance of ‘experience’

“Despite this emphasis on experience, MacAlister never trained as a social worker”.

Quite.

#Benefitsstreet – we all gain from benefits funded by tax payers, so stop the fuss……

Firstly I would like to suggest you could go to any street in Britain and find people in receipt of benefits. I define benefits as the provision of money and services funded via a national and local system of taxation. These benefits include, for example, tax credits, pensions, carers allowance, unemployment benefits, housing benefit, residential care fees. Then their are the benefits in kind, you know access to a GP, hospital, school, college, police, ambulance, fire service, environment agency, recreational facilities i.e. libraries, swimming pools etc etc. From my perspective our ‘benefits’ system is fantastic, demonstrating a genuine ‘big society’, one that has stood the test of time and one we lose at our peril. Yes some avoid work, live their lives differently than maybe you or I, but I firmly believe these are the minority and we should not be basing major welfare reform on a negative discourse aimed at a minority. Surely it is better to focus on the positives of the majority to shape our futures? The majority want to work and live in decent housing, this would mean then, creating stable employment opportunities and ensuring people receive a decent living wage and ensuring their is affordable housing so that they do not have to fall back on the benefits system.

So coming from this personal, and ideological, perspective I made myself watch the 2nd episode of Benefits Street and I was happily surprised at what I saw. What did I see?

I saw a street in Birmingham where those who represent a minority of british society, and who are often the most marginalised, live. I knew nothing of how they got their, what their story was, I have no idea how or why individuals were addicted to drugs or alcohol, I have no idea of the events that have led them to living in this particular street at this particular time. There are many streets like this in Britain, and individuals like these all live on similar streets because that’s where the housing they can access is located. It’s usually located in places possibly you and I would not like to live in, some of us have the resources to ensure we do not live in these places (I managed this through accessing free higher education as a mature student and being able to find stable employment). However, I am all too aware that my life could change in a blink of an eye. As a public sector worker my employment is insecure and a loss of job could result in a move somewhere more affordable. I’ve experienced it before, my father was a hard-working guy with three young children, he had an accident and could never work again, we then lived on benefits for the rest of my childhood and lived in streets not unlike benefits street with people not unlike those on benefits street.

All I can say is shame on those who want to use this programme as an excuse to stigmatise those in receipt of benefits even more, your energies would be better spent trying to create a society of hope, pathways to real opportunities for those in the minority, those most marginalised, those most powerless.

Finally, if those on the right were hoping to spread more fear (the Romanians are coming!) they were probably sadly disappointed. Most revealing to many was the Romanians plight. Used and abused as slaves, stuck in a country that makes judgements about whole countries and sections of society based on biased political soundbites and tabloid headlines rather than actually finding out facts.

If anything I thought the Romanians stories shamed our politicians, and some sections of the media, for deliberately facilitating an environment of fear and hate in this country. Their energies would be better spent facilitating an environment of confidence in ourselves as a nation and respect for others as the foundation on which to understand issues that face us all.

A new year, but the same old story…..we need to change the narrative around care and the NHS

The Guardians front page informs us, yet again, the ‘soaring cost of long-term care threatens to ‘overwhelm’ the NHS. This follows hot on the heels of 3 years of dire pronouncements from Cameron and co on the viability and future of the NHS. The inevitable demise of the NHS is linked most often to the ‘demographic time bomb’, a phrase which succinctly stigmatises older people for ageing and justifies austerity measures and no end of initiatives from policy makers to introduce changes to meet ideological imperatives, rather than actually build on what has been a succesful economical healthcare system for over 60 years.

It’s time to drop the negative narrative which abounds whenever the NHS is discussed and embrace the positive contribution it makes to all our lives. Ministers and policy makers across all parties are not providing new and innovative thinking on the future of the NHS. Yes, Cameron, Osborne, Hunt, Gove and co really do think they are putting forward radical new plans, which appear to be centred around the ‘tyranny’ of choice and deeper privatisation of traditional public sector provision. This is not new , it’s a rehash of the same old neoliberal dogma beloved of Thatcher and Blair; transform health care into a product, and patients into consumers, ‘codify’ practice to make it ‘professional’ and ‘commoditize’ care to make it a deliverable ‘product’. Putting such narratives around practise makes problems in the NHS easier to talk about and resolve, i.e we need more training for carers, more training for leaders and managers, different providers, a mixed economy of care etc.

Many in government scream ‘consumer choice’ as if it’s the answer to every woe. However, for many the reality of choice is it’s a huge amount of hassle and the ‘choice’ is between equally dismal providers when all anyone really wants is one provider to provide a good service. My belief is the NHS is more than able to achieve this, yes reform is needed, however, the NHS is not just any old healthcare system, it is an expression of our values, our belief in a social institution based on equality and collectivity. It is also a proven alternative to free market competition. Lets not forget the reason for the existence of the NHS, it was founded on the failure of the free markets in a period of financial austerity – a time of new government and new political agendas.

Bevan said ‘Illness is neither an indulgence for which people have to pay, nor an offence for which they should be penalised, but a misfortune, the cost of which should be shared by the community’

The NHS is not an indulgence, it tells the world something about us as a nation, it tells us something about ourselves. Reform is required, certainly, but please, lets just try to make sure reform builds on the success of the NHS, not just the narrative of austerity. We as a nation need to ‘own’ the NHS in our collective conscience, otherwise we will lose it to the medical equivalents of the energy companies and financial sector.

Is that what we really want?