Human Rights and health care – practical application

1. Human Rights and health care – practical application Chris Cox Director of Legal Services Royal College of Nursing

2. Human Rights - overview ‘Research has shown that the application of human rights principles, for example dignity and respect can help to improve a patient’s experience and quality of care and will inevitably lead to improved outcomes’ Audit Commission • Accountability • Empowerment • Participation

3. Human Rights - overview • The Convention as a ‘living instrument’ • Strasbourg jurisprudence • Absolute and qualified rights • Public authorities and those undertaking public activities • Positive and negative obligations • Sections 3, 6, 7 and 8 • Proportionality

4. Protected rights • Article 2 - right to life • Article 3 - freedom from torture or inhuman or degrading treatment • Article 5 - right to liberty and security of person • Article 6 - right to a fair trial • Article 8 - right to respect for private and family life • Article 9 - freedom of thought, conscience and religion

5. Protected rights • Article 10 - freedom of expression • Article 11 - right of association • Article 12 - right to found a family • Article 14 - freedom from discrimination • Article 1 of First Protocol - protection of property

6. Unlawful discrimination • Article 14 • Not free-standing • ‘Other status’ • Defining ‘disability’ • Meaning of discrimination - identifying comparator • ‘Objective and reasonable justification’ • Indirect discrimination

7. Illustrations • Life saving treatment (article 2) • Safeguarding the vulnerable (article 3) • Detention because of mental ill-health (article 5) • Professional registration (article 6) • Covert filming (article 8) • Artificial nutrition or hydration (article 8) • Religious beliefs in workplace (article 9) • IVF treatment (article 12) • Access to treatment (article 14)

8. HRA management tool • DH human rights based approach (HRBA) putting human rights principles and standards at the heart of policy and planning (2007) • Individual at heart of system • Best standard of service that resources will permit • Perspectives of others – balancing rights and interests • Individual and community • Better decisions, objectivity, defence

9. HRA checklist • Step one: what is decision, policy or process being developed? Why? Purpose? • Step two: identification of rights (see articles) – what, who, how? • Step three: protection of rights or positive obligations – what, action? • Step four: balancing rights (clear legal basis; legitimate aim; necessary; proportionate – least restrictive; non-discriminatory) • Step five: organisation process – consultation; agreement; information; training

10. Illustration – restricting access to a drug treatment • Decision? Duty on PCT to commission medical services ‘as it considers necessary to meet the healthcare needs of the local population as a whole, within allocated resources’. • What rights? Whose? Ban treatment outright or restrict to exceptional circumstances? What circumstances? • Positive duty? • Balancing rights? • Organisational action?

11. Clinical negligence • In context of healthcare quality, few legally enforceable patient rights • Common law duty of care: Bolam (1957) and Bolitho (1997) – professional standard/limits of medical discretion • Standards of ‘adequate and appropriate’ care (X v UK (1978)) • Chester v Afshar (2004) – ‘vindication of patient’s rights’ the overriding consideration leading to relaxation in traditional requirements

12. Accessing treatment • Rationing • NHS Act 2006, NHS Act 1977 and Regulations • Rogers v Swindon NHS PCT (2006) – ‘rigorous scrutiny’ by courts where life and death situations (general policy of refusal save where exceptional circumstances permitted, so long as able to envisage what would be exceptional) • R v Cambridgeshire Health Authority, ex p B (1995) • Articles 2 & 3 • Does general policy have rational basis? Has it been applied appropriately in the particular case?

13. Degrading treatment and article 3 • High threshold - minimum level of severity • Duration, physical and mental effects, sex, age, victims health • Positive action to prevent abuses • Compulsory medical treatment and ‘therapeutic necessity’

14. Competency and consent • Gillick (1985) • Articles 5, 8 and 14 • Re F (Mental Patient)(Sterilisation) 1990 • Doctrine of ‘necessity’ and ‘best interests’ • R v Bournewood Community Health Trust ex p L (1998) • Articles 3 and 8 • Mental Capacity Act

15. Health records and confidentiality • Article 8 • Z v Finland (1998) • Data Protection Act 1998

16. Right to marry and found a family • Article 12 • Disabled people and parenting • Fertility treatment and Article 14 • Sterilisation

17. Private life and Article 8 • ‘Right to establish and develop relationships with other human beings’ • Physical and moral integrity, e.g. consent to medical treatment • Private life, including physical privacy • Accessing information relating to private life • Right to a home and independent living • ‘Family life’

18. Restraint • Form • Abuse • No specific legislation • General criminal and civil law • Statutes: Mental Health Act 1983 (as amended by Mental Health Act 2007), Human Rights Act 1998

19. Restraint of children and young people • RCN ‘Restraining, holding still and containing children and young people: guide for good practice’ (2003) • BMA ‘Consent, Rights and Choices in Health Care for Children and Young People’ (2001) • United Nations Convention on the Rights of the Child 1989 • Parental rights and responsibilities

20. HRA 98 (1) • Article 5 • Meaning of detention: Ashingdane v UK (1985) • Principles: Winterwerp v The Netherlands (1979/80) • objective medical expertise reliably showing person to be of ‘unsound mind’ • disorder of a kind and degree warranting compulsory confinement

21. HRA 98 (2) • Continuing disorder • In accordance with domestic law • Procedural safeguards (Article 5(4)) • Article 3 (Herczegfalvy v Austria (1993) • Duration of treatment • Physical or mental effects • Age, sex, vulnerability and state of health • Article 8