Health Bill [HL]

My Lords, the amendment tabled by my noble friend Lord Dubs on behalf of the Joint Committee on Human Rights would highlight the fact that NHS services funded by direct payments—whoever provides them—are functions of a public nature for the purposes of the Human Rights Act 1998. I hope to persuade my noble friend that there is no need to make this explicit in the Bill; and furthermore, that to do so might cause confusion and have an adverse effect on how other health services are provided. This is not to deny the need for greater clarity about what constitutes a public authority under the Human Rights Act. The Government are aware of concerns raised by the Committee on this matter, and remain committed to consulting on the issue in due course. The Committee previously sought clarification on whether the Government considered that private providers of health services funded through direct payments were to be treated as public authorities under the Human Rights Act. I will reiterate the Government’s position. We do consider independent providers of healthcare to be public authorities, for the purposes of Section 6 of the Human Rights Act 1998, when they are providing services under the National Health Service Act 2006. The duty of the Secretary of State to continue to provide a comprehensive and free health service under the Act is a core public function. The Government consider that all independent providers of healthcare that provide services in fulfilment of that duty are carrying out a public function, and therefore that they are all public authorities for the purposes of Section 6 of the Human Rights Act. The Government do not consider that any distinction can be drawn between the situation where the Secretary of State directly enters into a contract with an independent provider of healthcare services—as permitted by Section 12 of the National Health Service Act 2006—and the situation where a patient enters into a contract with an independent provider of healthcare services under the proposed legislation. In both cases, the services will be provided under the National Health Act 2006, and in fulfilment of the Secretary of State’s duties. Similarly, an independent provider of after-care services under the Mental Health Act 1983, whether commissioned by a primary care trust or providing the services under a direct payment arrangement, will be covered by the Human Rights Act. The Government also note that the costs of services provided under the proposed direct payment arrangements would still be met from public funds. The Government note that there would still be a strong public interest in ensuring that the services were properly provided. The Government do not, however, believe that it is necessary to state this in the Bill, which is what the amendment seeks to achieve. To state explicitly that providers of healthcare procured by direct payments were carrying out public functions for the purposes of the Human Rights Act could cast doubt on whether independent providers of health services acting under other relevant sections of the National Health Service Act were exercising functions of a public nature. The judgment in YL v Birmingham City Council 2007 does not alter the position. It did not determine the position of any function other than those specifically considered by noble and learned Lords. For example, the noble and learned Lord, Lord Mance, explicitly stated that he, ""would leave entirely open the position of those operating in different areas of health and education services"." The provision made in Section 145 of the Health and Social Care Act 2008 was necessary only because of the judgment in the YL case. It was intended to ensure that, notwithstanding the judgment, some social care and accommodation that is publicly arranged under the National Assistance Act is a public function subject to the Human Rights Act. The approach was deemed sensible by a range of stakeholders at the time, and no subsequent court judgment has led the Government to consider that independent providers of national health services are not public authorities for the purposes of the Human Rights Act. In the light of these explanations, and of the Government’s intention to consult on the issue of what constitutes a public authority under the Human Rights Act, I hope that my noble friend will withdraw his amendment.