The government must legislate to ensure people who use direct payments to buy healthcare from independent providers are protected by the Human Rights Act 1998, MPs and peers have said.
In a report, the joint committee on human rights raised concerns that, despite government assurances, the courts would not treat independent providers as liable for human rights abuses when providing services to direct payment users.
Landmark care home case
In a key judgement in 2007 – YL v Birmingham City Council – the House of Lords ruled that independent providers of care homes contracted by councils were not bound by the Human Rights Act. The case concerned a Birmingham woman with Alzheimer’s who was threatened with eviction by her care home.
The government then legislated through the Health and Social Care Act 2008 to bring independent care homes providing services arranged by councils under human rights legislation, but has not done so in other service areas.
Direct payments for health
The current Health Bill would introduce direct payments for health services, which the Department of Health intends to pilot for people with long-term conditions, but the bill does not specify that independent providers would be liable under human rights legislation.
Health minister Lord Darzi told the committee the government considered independent organisations providing services under contract to NHS patients as “public authorities”, making them liable under the Human Rights Act. He said this would apply to services purchased using direct payments as well.
Call for amendment
However, the committee warned that without a provision on the face of the Health Bill specifying this, the courts may follow the Law Lords in the YL judgement in concluding that independent providers were not bound by human rights law.
The committee called for the bill to be amended to cover this possible loophole, adding: “Service users, primary care trusts, service providers and the courts would then be left in no doubt about the application of the Human Rights Act and the availability of a direct remedy.”