Department of Health ignores NHS continuing Healthcare Human Rights warnings
The Article below appeared in Disabled Go website.
It shows that NHS primary care organisations and HSCTs are refusing to provide continuing healthcare packages in people’s homes, and instead insisting they move into a residential setting ie private state institutions, in breach of their human rights.
Campaigners have warned, more than 40 NHS English primary care organisations, that their policies will see service-users with complex healthcare needs forced into institutions in breach of disabled people’s human rights.
Despite the warning, the Department of Health last night 25/1/17 refused to say if it had any concerns about the policies on NHS continuing healthcare (NHS CHC), or whether they complied with its own guidelines.
Reasons why the Department of Health can systemically ignore the disabled’s Human Rights
DOH is not responsible for the NHS, as NHS England was substituted by the Health and Social Care Act 2012.
They are only guidelines so not mandatory.
No individual can find a lawyer nor pay for one to sue under the HRA and risk over side’s costs and if they did it is unlikely the courts would uphold these rights.
Such manipulation and contempt for the public, who pay for these services appears standard through successive government policies and law which have put the public in this appalling position.
They have been hoodwinked by their own governments and public services.
Research on the policies, published last week by disabled campaigner Fleur Perry, showed at least 44 clinical commissioning groups (CCGs) – and probably many more – would be willing to move disabled people with high-cost support packages into residential or nursing homes against their wishes.
Perry, who edits the website Disability United, is herself a recipient of NHS CHC.
Her research, using Freedom of Information requests, showed, that the 44 CCGs had drawn up policies containing “concerning” phrases, that suggested they would move disabled people eligible for NHS CHC, out of their homes, into institutions against their wishes, even if the cost of a homecare package was only slightly more expensive than residential care.
Most of the other CCGs that responded to her requests said they relied on the Department of Health’s National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care, and the NHS England Operating Model for NHS Continuing Health Care*.
Perry’s research has alarmed disabled activists and other campaigners for independent living.
Jenny Morris, a member of the Independent Living Strategy Group, which is chaired by the disabled crossbench peer Baroness [Jane] Campbell, said the group was “extremely concerned” by the research.
Morris, who helped write the Labour government’s Improving the Life Chances of Disabled People white paper, said:“This is taking us back to a time when disabled people were not considered to be equal citizens.
“It is also a denial of human rights to a private and family life, and a direct contravention of article 19 of the United Nations Convention on the Rights of Persons with Disabilities, which states that disabled people have the ‘right to live in the community with choices equal to others’.
“The UK government has signed up to and ratified this convention and CCGs as public bodies should not be taking decisions such as this.”
Rob Greig, chief executive of the National Development Team for inclusion (NDTi) – which works with charities and government departments, including the Department of Health, to promote inclusion and independent living – said the research was “seriously concerning”.
He said it was not a surprise that such policies existed but he was surprised at
“the blatancy with which it was acknowledged [by CCGs] and the extent to which it was found”.
Greig, a former national director for learning difficulties and currently a member of the Equality and Human Rights Commission’s (EHRC) disability committee, said he would bring Perry’s research to the EHRC’s attention this week.
But he said that, because of the continuing reductions in EHRC’s budget and its expertise on disability, he was not sure if it had the “capacity to continue to raise and take up issues such as this”.
He said that NHS England needed to be
“asking questions of those authorities that have responded in this way”, and added:
“If they are breaching human rights then the human rights legislation needs to be brought into play.”
He said the culture within the health sector meant health professionals
“don’t automatically think of the human and civic rights arguments when it comes to designing people’s services”.
He added: “Therefore it’s not right, but perhaps not surprising that the healthcare system will not consider the impact on people’s rights and personal autonomy when deciding what sort of service they want to put someone in.”
In response to one NHS consultant who suggested on Twitter that the solution to the CCG policies was for people receiving NHS CHC to ask for a personal health budget (PHB) – giving them control over how their CCG funding was spent – Greig said this might be a solution for only a limited number of people.
He said: “I think it’s on record that the number of people receiving personal health budgets is pretty low at the moment.
“In the right circumstances it might be a solution for some people. It would not be accurate to say that it could be a widespread solution to this.”
Greig suggested that using a PHB might only work if someone receiving NHS CHC, with a support system in place, was able to use the flexibility provided by a PHB to spend their allocated budget “in a more cost-effective way”, but only if the Clinical Commissioning Group was not allocating resources to those receiving PHBs from a perspective of “we are doing this to save money”.
Sue Bott, deputy chief executive of Disability Rights UK, said:
“PHBs are certainly the way to gain control over how your health needs are met, but we do need to challenge those Clinical Commissioning Groups who have a policy of limiting PHBs to the cost of residential care.
“CCGs need to understand the principles of independent living and how meeting support needs contributes to disabled people’s right to be full citizens in their communities.”
A Department of Health (DH) spokeswoman refused to say if DH was concerned about the 44 policies or if it believed they complied with its framework*.
But she said in a statement: “Every person with complex needs should be offered the right level of care for them, in the right environment.
“We expect all Clinical Commissioning Groups to follow the National Framework for NHS Continuing Healthcare* and continued independence should be considered as part of the overall approach to care planning.”
“As CCGs are statutory bodies in their own right, it does not fall to the Department of Health to approve an individual CCG’s approach.
“All CCGs are provided with national guidance which helps inform their policies.
“From 2015 to 2016, NHS Continuing Healthcare has been included in the quality assurance processes for CCGs.
“This will help make sure that all CHC assessments are consistent across the NHS, and that they comply with the CHC National Framework.”
NHS England had failed to comment by noon 26/1/2017.
*The NHS England operating model stresses that “personalisation should be at the heart of all NHS Continuing Healthcare assessments and the provision of care and support”, and calls for “innovative, personalised packages of care”.
The Department of Health national framework says CCGs “should commission services using models that maximise personalisation and individual control and that reflect the individual’s preferences, as far as possible”, and that although cost can be taken into account, it “has to be balanced against other factors in the individual case, such as an individual’s desire to continue to live in a family environment”.
The framework points to a 2005 human rights legal case in which the high court found, that forcing a woman who needed constant nursing care into an institution would infringe her right to a family life under article eight of the European Convention on Human Rights, and that article eight should be given “considerable” weight in such cases, although the cost of a package “is a factor which can properly be taken into account”.
( But this ignores the fact that the LA/HSCTs can apply to the court of protection, if they suspect a person incapable, and say it is in that person’s ‘best interests’ that they have enforced services and effectively ignore their s8 HRA and this is what is happening. )
Author Kathryn Hodgson
Digital Marketing Executive at DisabledGo.com
NB under the Care Act, if a person is ‘incapable’, the LA must approve any personal budget support, which, as their policy is only an institution, they will not.
Or, only pay for support workers, who they control, and are trained in assessing and reporting safeguarding issues that can then be used to obtain court orders for removal to an institution.
Last year 433 million was granted to LA/HSCTs for this purpose.
The disabled, if not ‘incapable’, can sue breach of the LA ‘s duty to support and HRA, but unlikely to get a lawyer, experts, and risk paying LAs legal costs, if they lose which is likely.
If MCA ‘incapable’, the disabled are represented by a state Official Solicitor, as Lasting Powers of Attorneys are voided, and Guardianships not granted.
This OS will decide removal is in their ‘best interests’ under MCA.
The Government are hijacking the money available to the disabled and their families under the Chronically Sick and Disabled Act 1970 for health, care.
And if under 25 education, and paying it to their commissioned private monopoly corporate providers.
If the disabled is assessed ‘incapable’, as is always the case, under the Mental Capacity Act 2005, these services along with any medication, restriction can be enforced for life, as can be any type of personal care- washing etc and contact with friends and family.
Neither the money paid for these nor the services provided, appear accountable.
And their only oversight, is an Adult Services Manager who is employed by the commissioner of the services.
Below is a relevant comment on Community Care Article on this
‘Further, the ‘personalisation agenda ‘ was /is the foundation for this culture to develop, the Standing commission for Carers are aware of this.
Not at any time did the promoters and policy developers say the ‘outcome’ was systematic abuse of Carers to breaking point so that the people we care for can be Justifiably [ in their eyes] removed, because at that time the market still needed to be developed, now it has been developed the system and market needs feeding and supporting and it is our vulnerable family members who will be doing it .
They have all got a price on their heads and are a valuable commodity. Family Carers are disposable defunct’