British Medical Association (London). October 2000.
British Medical Association (London). October 2000.
The Human Rights Act represents a major and welcome development in the protection of individual human rights in the United Kingdom. Over recent months there has been considerable speculation in the media and professional journals about the likely impact of the new legislation, including the impact on medical decision making. In many ways the true impact will not be known until a body of case law has developed to illustrate how UK courts interpret the Convention rights. What is clear, however, is that the introduction of the Human Rights Act does not represent a major change in practice for health professionals. The requirements of the Human Rights Act reflect, very closely, existing good practice. Decisions taken by doctors on the basis of current ethical standards are likely to be compliant with the Act. Issues such as human dignity, communication and consultation, and best interests which are central to good clinical practice are also pivotal to the Convention rights. It is likely however, at least initially, that attempts will be made to challenge medical decisions using the new legislation. It is therefore essential that decisions taken both about individual patients and in terms of medical policy, take account of Conventions rights, are transparent and can withstand scrutiny. Accurate and detailed recording of both the decision and the decision-making process also take on added importance.
The 
Human Rights Act 1998, which came fully into force on 2 October 2000, incorporates into UK law the bulk of the substantive rights set out in the European Convention on Human Rights. These include:
Those who believe their rights have been violated by a public authority now have recourse to the UK courts whereas previously they would have had to take their case to the European Court in Strasbourg.
In addition, UK courts and tribunals (including those considering applications for court declarations) are required to take account of the Human Rights Act and to ensure that the development of the common law is compatible with the Convention rights. The way in which the UK courts will interpret the Convention rights and the impact these will have on medical decision making is a matter of speculation. Although the courts must take into account existing Strasbourg case law, the Convention is a 'living instrument', which means that it should be interpreted in the light of present day conditions. This means that interpretation must reflect changing social attitudes which include patient expectations and ethical standards. Therefore recent decisions are likely to be of most significance and it is important to maintain an awareness of the growing body of case law in the UK.
Why is the Human Rights Act relevant to medical treatment?
The Human Rights Act is relevant to health care providers since it regulates the relationship between individuals and public authorities. It is unlawful for public authorities 'to act in a way which is incompatible with a Convention right'. The description of a public authority given in the Act includes: the Department of Health, health authorities, Health Trusts, Primary Care Groups and Trusts in England, Primary Care Trusts in Scotland, Local Health Groups in Wales and the equivalent bodies, still to be established, in Northern Ireland. Individual doctors working within the NHS are almost certainly public authorities and it has been suggested that doctors working privately may also fall into that category. (The degree to which the work of private doctors is covered by the Act remains a matter of speculation and once this matter has been clarified the BMA will include information on its website) This means that from October 2000 doctors working within the NHS throughout the UK are required by law to observe the Convention rights in reaching decisions and must be able to demonstrate that they have done so. Even if it emerges that private doctors are not classed as public authorities, the BMA believes, as a matter of good practice, that all doctors should ensure that their decisions are compliant with the Act.
Many doctors are not accustomed to thinking in terms of rights
but one of the purposes of this guidance is to show the way in which accepted good practice, focused on patients' wishes and interests, closely echoes the requirements of the Human Rights Act. In many cases, considering Convention rights will not alter the final decision, but the way in which the decision is reached will differ (by specifically considering human rights issues) and there will be greater transparency and scrutiny of the decision-making process.
Decision making by all public authorities must now be approached from a new perspective. In addition to the range of questions considered in the past, there are two further questions to ask in each case:
It will take time for doctors to become sufficiently familiar with these new requirements for them to become a standard and routine part of the decision-making process. The dilemmas doctors are confronted with will not change but the terms within which they must address them will. Many aspects of existing good practice - such as careful assessment of best interests, balancing conflicting rights and consulting with patients and, as appropriate, their relatives - take on added importance as a result of the Human Rights Act, which makes them a required part of the decision-making process. Doctors are accustomed to taking into account the duties owed to patients and so the Human Rights Act should not involve major changes for them although decision making may initially take longer until this new way of thinking about those duties becomes incorporated into everyday practice. It is not, however, something doctors can opt out of and all their medical decisions are potentially open to challenge.
Articles 2, 3, 5, 6, 8, 9, 10, 12 and 14 are likely to be the most relevant to medical decisions although other Articles may also be relevant. Convention rights are divided into three types:
Article 14 does not give a free standing right but may only be invoked in a claim for some other Convention right (see section 2.8).
Until a body of case law develops in the UK, it is unclear what impact the Human Rights Act will have on medical decision making. This guidance draws on existing cases from the European Court and Commission and advises on the likely impact of the Act on the day-to-day decisions of health professionals. It illustrates the way in which Convention rights are relevant to some common medical decisions. It is not possible to provide guidance for every scenario but the aim of this document is to use common examples to illustrate how a human rights approach can be incorporated into decision making, the general principles of which can then be applied to other situations. As UK case law develops and provides clarity on issues where it is only possible, at present, to speculate, additional information will be provided on the BMA's website.
Doctors are also affected by the Act in other ways, for example, as employers or employees and in relation to the protection of their own rights. In certain circumstances, for example, the duty placed on public authorities extends to taking measures designed to ensure the proper protection of staff from the infringement of their Convention rights by others (such as protecting doctors from violent or racially abusive patients [British Medical Association Medical Education Department (in press) Provision of care to violent and racially abusive patients, BMA: London.]. These aspects of the Act are not covered by this guidance, which is limited to medical decision making, but specific advice may be sought from the BMA on these and other matters concerning the legislation.
Article 2 - Right to life
The introduction of a right to life
in the Human Rights Act does not mean that doctors must always strive to prolong life but that specific consideration must be given to this right as part of the medical decision-making process. Article 2 imposes positive and negative obligations on public authorities (X-v-FRG Appl, (1984)), such that they have a duty to take adequate and appropriate steps to protect the life of individuals in their care (X-v-UK (1978) 14 DR 31), as well as not to take life intentionally. It is therefore arguable that a health care provider is obliged to make adequate provision for medical care in all cases where the right to life of a patient could be at risk, and that withholding or withdrawing any life prolonging treatment could be in breach of Article 2.
The extent of the public authority's obligation, however, is limited to that which is reasonable (Osman-v-UK (1998) 29 EHRR 245). The UK courts began to consider human rights arguments before the Human Rights Act was implemented and in one of the first cases to specifically address the issue (A National Health Service Trust v D & Ors (2000) TLR 19/7/2000), Mr Justice Cazalet made clear that Article 2 does not require the prolongation of life in all circumstances (In considering whether the withdrawal of life-prolonging treatment would be contrary to Article 2, Mr Justice Cazalet said [t]here does not appear to be a decision of the
.). In that case, concerning non-resuscitation of a 19-month-old child ( European Court which indicates that the approach adopted by the English courts in situations such as this is contrary to Article 2I
) who had severe disabilities and a very short life-expectancy, it was held that withholding life-prolonging treatment did not breach Article 2 because the decision was made on the basis of the child's best interests.
I
was born in November 1998 and suffered from a severe, chronic, irreversible and worsening lung disease giving him a very short life expectancy. He also had heart failure, hepatic dysfunction and renal dysfunction with a background of severe developmental delay. When I
was 19 months old the hospital applied to the court to be permitted to treat him as advised by his paediatrician; this would include non-resuscitation in the event of a respiratory and/or cardiac failure and the provision of palliative care to ease his suffering and to permit his life to end peacefully and with dignity. The parents strongly opposed the application considering it to be premature. Given the conflicting views that could not be resolved by discussion, or by seeking further medical opinions, a best interests
application was made to the court. Reports were considered from three consultant paediatricians, all of whom agreed that it was in the best interests of I
that he should not be further subjected to resuscitation involving the provision of artificial ventilation and admission to paediatric intensive care. These decisions were reached on grounds of the invasive nature and risks of artificial ventilation and the distress, discomfort and pain caused by the treatment. In reaching his judgement, Mr Justice Cazalet stated that the court's clear respect for the sanctity of human life imposed a strong obligation in favour of taking all steps capable of preserving life, save in the most exceptional circumstances. In this case, however, he held that there could be no Article 2 infringement because the treatment authorised (non-resuscitation) was made in the best interests of I
. (A National Health Service Trust v D & Ors (2000) TLR 19/7/2000)
That withdrawing or withholding treatment which has the potential to prolong life does not breach Article 2 where non-treatment is in the patient's best interests was confirmed in a subsequent case involving two patients in persistent vegetative state (pvs) (Judge confirms patients' right to die. The Guardian 7 October 2000). The case, involving two patients Ms H and Mrs M, was heard in the High Court on 5 and 6 October 2000. Before the Human Rights Act was implemented, it was speculated that the common law position permitting the withdrawal of artificial nutrition and hydration from patients in pvs may be inconsistent with those patients' right to life. The case, which was heard in the High Court just days after the Act's implementation, however, confirmed that where withdrawal of artificial nutrition and hydration is in a patient's best interests, there is no breach of Article 2.
To the extent that best interests remain central to the decision-making process, this reflects an extension, rather than a change, of existing good practice. Since the introduction of the Human Rights Act, however, the way in which best interests are assessed and the factors taken into account in reaching those decisions are likely to be open to far greater scrutiny. Doctors must be able to show that the patient's right to life was specifically considered and, where treatment is not provided, to demonstrate legitimate grounds for not taking steps to enforce that right.
Article 2 is also constrained by the concept of futility (LCB-v-UK Appl No 23413/94 (1998). The Times, 15 June 1998.) There is a lack of consensus about the meaning of futility, but it is possible that if treatment would have no effective result, then withholding it would not breach Article 2. It is for the court to decide whether futility should be considered from a 'medical goal' or a broader 'best interests' perspective.
Although people cannot generally waive their right to life by consenting to be killed, a competent adult may effectively waive his or her right to have life prolonged by making an informed refusal of life-prolonging treatment. Individuals may not, however, waive the right to have someone else's life prolonged, such as a dangerously ill child or an incompetent adult and nor can they require others to take active measures to end their life or that of someone else.
The positive duty on a public authority to protect life, under Article 2, requires it to take steps to prevent life-threatening conditions by, for example, vaccination programmes. It also includes a duty to inform the public of threats to life which could include a duty to warn of the effects of pollution, epidemics and perhaps risks such as BSE. This duty could extend to situations where a doctor knows that an individual patient is putting another identifiable individual at risk, for example, if a doctor is aware that a patient is knowingly exposing his or her partner to HIV infection, or has refused to inform close relatives that they are at risk of a serious, life-threatening genetic disorder for which avoiding action could be taken. People who are harmed by a doctor's failure to warn in such cases could claim that this breached their Article 2 right. In deciding whether to breach confidentiality, in these circumstances, however, the doctor needs to consider the patient's right to privacy, including under Article 8 (see section 2.5). The two conflicting rights would need to be balanced, based on the individual facts of the case, to decide which should take precedence; the doctor must be able to justify choosing one over the other. In practice the same type of analysis is required as before the Act came into force although the decision-making process and the reasonableness of the decision may now be open to greater scrutiny.
Treatment that could prolong life may sometimes be withheld on the grounds of scarce resources. Whilst it is open to a patient to argue that economic factors should not be taken into consideration in making treatment decisions, any claim under Article 2 would need to show that failing to provide treatment would lead to a real, perhaps inevitable, and immediate risk of death and that providing treatment was likely to avert that risk. Even if this case could be made, for example with some new expensive drugs for cancer patients, public authorities are only required to take those steps to avoid death that are appropriate
and it appears that a shortage of resources may be a valid constraint to providing life-prolonging treatment. In reaching policy decisions about the allocation of resources, Health Authorities, or other decision-making bodies, must be able to show that they have considered their patients' Article 2 right, and must be able to justify interfering with that right. Such decisions must be transparent, logical and able to withstand scrutiny. The decision must also be non-discriminatory; a blanket age restriction on treatment such as cardiopulmonary resuscitation, for example, is likely to contravene Article 14 (see section 2.8). The court is unlikely to interfere in a particular case with a Health Authority's decisions on allocation of resources provided the appropriate procedures have been followed.
Article 2 does not state that everyone has the right to life, only to have that right protected by law. Traditionally, under UK law, an unborn child has no legal rights. However, it has been suggested that the right to life in Article 2 of the European Convention could extend to the unborn, in certain circumstances, so as to give the fetus, in some situations, a right to life. The European Court has avoided making a decision as to whether everyone
includes the unborn child. Given, however, that individual states are allowed a wide margin of appreciation on matters of a moral nature, discussion on the subject within the European Commission16 and the way UK law has developed in this area, it is unlikely that a fetus would be considered, by the UK courts, to have legal rights under the Human Rights Act. Until a case has been considered, however, the law on this matter, particularly in relation to viable fetuses, remains uncertain.
Article 2 - Summary
Article 3 - prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 3 is an absolute right, allowing no derogations but it can be interpreted in various ways. Whether an act constitutes inhuman or degrading treatment depends upon a range of factors and the individual circumstances of each case. Withholding proper medical care in a case where someone is suffering from a serious illness could, in certain circumstances, amount to treatment contrary to Article 3 (although how 'proper medical care' should be defined is a matter of debate and is ultimately for the courts to decide)(Tanko-v-Finland (1994)). Equally, however, providing invasive treatment contrary to the patient's expressed wish or his or her best interests - where, for example, the burdens outweigh the benefits - could also violate that patient's Article 3 rights. This latter interpretation was reinforced by a 1997 case before the European court (D-v-UK [1997] 24 EHRR 423), in which it was held that Article 3 includes the right to be allowed to die with dignity. Therefore either giving or withholding treatment could breach the patient's Article 3 rights, depending upon the individual circumstances.
D was born and spent most of his life in St Kitts. On arrival in the UK in 1993, seeking permission to enter for two weeks, he was found to be in possession of a substantial quantity of cocaine and was sentenced to six years' imprisonment. While in prison D was found to be HIV positive and developed AIDS for which he was receiving medical treatment. On his release from prison on licence, D applied to remain in the UK on compassionate grounds so that he could continue to receive the level of medical care he needed. This request was turned down and D took his case to the European Court of Human Rights. D's solicitor argued that removal to St Kitts would entail the loss of the medical treatment D was currently receiving, thereby shortening his life expectancy. Furthermore such action would condemn him to spend the rest of his remaining days in pain and suffering in conditions of isolation, squalor and destitution. The Court held that, although it could not be said that the conditions which would confront him in the receiving country were themselves a breach of the standards of Article 3, D's removal to St Kitts would expose him to a real risk of dying under most distressing circumstances and would thus amount to inhuman treatment in violation of Article 3. D-v- UK [1997] 24 EHRR 423
In addition to differing interpretations of individual rights, there are also some cases in which different rights appear to conflict. In some cases, for example, Articles 2 and 3 will come into conflict if withholding treatment would lead to the death of the patient but providing it could be classed as inhuman or degrading treatment. In the case of I
referred to above, Mr Justice Cazalet decided that, given the individual circumstances of that case, the best interests of I
was that his right to be allowed to die with dignity should be upheld. In this case, Article 3 took precedence over Article 2; this will not always be the case. In every decision all Convention rights must be considered and where they conflict, the doctor must be able to justify choosing one over the other.
The European Court has established that medical treatment without consent could, in extreme circumstances, be considered inhuman or degrading treatment (Herczegfalvy-v-Austria (1992) 15 EHRR 437). Where, as UK law permits, treatment is provided to an incompetent patient in his or her best interests, Article 3 is not violated (X-v-FRG (1984) 7 EHRR CD 152). If, on the other hand, the treatment has been refused by a competent patient, or it was known that the patient would not have given consent to the treatment, or the patient had refused the treatment through an advance directive (See, for example, British Medical Association (1995) Advance Statements About Medical Treatment, BMA: London), and the effect on the patient is sufficiently serious, providing treatment could be deemed to breach the patient's Article 3 rights. The threshold set by the courts, however, is very high and it would need to be shown that the effect of the decision was sufficiently serious to fall within the scope of Article 3. Treatment without valid consent could also be deemed to breach Article 8 (see section 2.8).
From 1972 to 1984 Mr Herczegfalvy was compulsorily detained in Austria, some of the time in prison and, intermittently, in a psychiatric hospital after he was diagnosed as suffering from paranoia querulans. On a number of occasions during this period he went on hunger strike and was force-fed. Mr Herczegfalvy also refused to consent to any medical examination or treatment but was given sedatives and other medication against his will. In order to administer the treatment in the face of his aggression and death threats, he was attached to a security bed or was handcuffed with a belt around his ankles. After his release in 1984, Mr Herczegfalvy made a number of complaints about his treatment, including a claim under Article 3 that the forcible administration of food and neuroleptics and the use of handcuffs and the security bed to administer the treatment constituted inhuman or degrading treatment. The Court considered that the position of inferiority and powerlessness which was typical of patients confined in psychiatric hospitals called for increased vigilance in reviewing whether the Convention had been complied with. It held, however, that it was for the medical authorities to decide, on the basis of the recognised rules of medical science, and on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves. The court went on to say that, as a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading but that medical necessity must be convincingly shown to exist. In the case of Mr Herczegfalvy, it was held that the evidence was not sufficient to disprove that the medical necessity justified the treatment and that there had not been a violation of Article 3. Herczegfalvy-v-Austria (1992) 15 EHRR 437
Failure to provide information could, in extreme cases, be classed as inhuman or degrading treatment. For example, parents who belatedly discovered that their deceased child's organs had been retained and used for research may be caused great anguish and distress. Failure to provide information about what had happened to the organs could be seen to breach Article 3.
Refusing to provide treatment for a patient because of some personal characteristic, such as age, sexual orientation or physical or mental handicap, might also be considered a breach of Article 3, amounting to inhuman or degrading treatment. This Article prohibits treatments that 'lower the individual in rank, position, reputation or character, whether in his own eyes or the eyes of other people' (East African Asians -v-UK 1981). In a 1994 case before the European court it was held that not providing medical treatment to patients in custody was a breach of Article 3 (Hurtado-v-Switzerland (1994)). The same may be true if treatment that would clearly benefit them is withheld from elderly patients who are dependent on the NHS for the provision of medical care.
Article 3 - Summary
Patients have a right under Article 3 to be protected from inhuman or degrading treatment. Whether the treatment is inhuman or degrading
depends upon the individual circumstances of the case, in particular, whether it reaches the high threshold of gravity set by the court. Such cases are likely to be exceptional but could include, for example: withholding proper medical care in a case where someone is suffering from a serious illness; providing invasive treatment contrary to the patient's best interests - where, for example, the burdens outweigh the benefit; denying the patient the right to be allowed to die with dignity; treatment without consent except where treatment is provided to an incompetent patient in his or her best interests; providing treatment against the wishes of a competent patient; providing treatment to an incompetent patient when it is known that he or she would not have given consent to the treatment, or had specifically refused the treatment by means of an advance directive; refusing to provide treatment for a patient because of some personal characteristic, such as age, sexual orientation or physical or mental handicap. The individual factors of the case need to be assessed to decide how inhuman or degrading treatment
should be interpreted.
Article 5 - Right to liberty and security
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
The right to liberty does not mean that individuals must never be detained against their will and Article 5 provides specific exceptions to permit the lawful detention of those who have committed a criminal offence and to detain those who may pose a risk to themselves or others. Unsoundness of mind
is one of the exceptions allowed by Article 5(1)(e) although the European Court has taken the view that the meaning of that phrase is not susceptible to a definitive interpretation since it will continually evolve. As a minimum, however, the Court has emphasised that unsoundness of mind
cannot be used to detain an individual merely because his or her views or behaviour deviate from the norms prevailing in a particular society. This standard is also reflected in the UK mental health legislation. Detention under Article 5(1)(e) is only justified where appropriate procedures have been followed. The European Court has specified that in order for such detention to be lawful, in all but emergency cases, there must be reliable evidence before a competent authority:
In addition, patients who are detained are entitled to seek review of the lawfulness of the detention and of the continued need for detention.
Article 5 gives patients protection against arbitrary detention and could be used to challenge unjustified detention under the mental health legislation or informal treatment for a mental disorder. In order to ensure that Article 5 is not breached, the proper procedures must be carefully followed. Where an individual is considered to represent a risk to another person, in considering whether compulsory detention would be appropriate, the positive duty to protect life must also be included in the decision-making process.
Article 6 - Right to a fair trial
It has been suggested that one of the effects of Article 6 will be to make it more common for Trusts to apply to the courts for declarations about the provision or withholding of treatment (Parsons N, Glendening J.The Human Rights Act 1998: Consent to Treatment, NHSLA Review Human Rights - Special Edition, Issue 19, Summer 2000 pp.12-13.). Some lawyers express scepticism about this use of Article 6 and further information on this point will be made available once this point has been clarified.
Article 8 - Right to respect for private and family life
This Article is very broad but its relevance to medical decisions relates, primarily, to the rights of individuals to confidentiality and to be involved in decision making about their treatment or that of their relatives.
In a 1989 case before the European Court (Gaskin-v-UK (1989) A man who had been brought up in local authority care sought access to files that the local authority had compiled about him. The Court held that Article 8 imposes a positive obligation on the state. Since the files contained information relating to his childhood and development, a lack of access was a breach of his Article 8 rights.). It was held that public authorities have a positive obligation to allow an individual access to files containing information about him or her. Although this case related to files held by the local authority, it is likely that a failure to allow individuals access to medical records concerning their treatment may also breach Article 8. Since the subject access provisions of the Data Protection Act 1998 came into force in March 2000, individuals have had a statutory right of access to the whole of their medical record (with limited, specific exceptions) and so Article 8 reflects existing access legislation in the UK.
In addition to allowing individuals access to their own medical records Article 8 may also impact on the amount of information to be provided for consent to be valid and informed. It could be argued, for example, that informed consent had not been obtained because a particular piece of information about the treatment was withheld. This does not mean that doctors must tell patients about every possible complication of the treatment however small, but that they must be able to show that they have taken into account the patients' Article 8 rights and be able to justify withholding information. Some forms of experimental or innovative treatment could also violate Article 8 unless the patient has been given sufficient information and has given a valid consent.
It is likely that Article 8 also extends to individual rights to be involved in medical decisions. The Court has taken the view that parents have the right under Article 8 to be involved in important decisions concerning their children (W-v-UK (1987) 10 EHRR 29.).
Article 9 - Freedom of thought, conscience and religion
Article 9 is absolute so far as the right to belief is concerned, but qualified (permitting derogation) in respect of the right to act on one's beliefs or oblige others to comply with them. A patient may object to treatment, or the parents of a child may object to treatment for the child, on religious grounds, even where withholding treatment may lead to death. If the medical professionals deem treatment to be in the best interests of the patient and necessary to preserve life, then a decision to treat or to withhold treatment must be made by balancing the competing rights of the patient under Article 9 and the positive obligation of the health authority under Article 2. The patient's right to be protected from inappropriate or unlawful treatment without consent (which may be claimed under Article 3) must also be taken into account.
It is possible that Article 9 could be used to claim a broader legal right to conscientious objection. Currently the only areas where doctors have a legal right to claim a conscientious objection are to participation in abortion and activities licensed under the Human Fertilisation and Embryology Act. The BMA, and other professional bodies, however, recognise an ethical right to claim a conscientious objection to a broader range of activities: prescribing contraception including emergency contraception, for example, and decisions to withhold or withdraw treatment, including artificial nutrition and hydration. It is possible that Article 9 could be used to strengthen such a claim and to challenge an employer's insistence upon involvement in such activities. It is still necessary for a doctor claiming a conscientious objection to refer the patient to another practitioner and to provide treatment in an emergency situation.
Article 10 - Freedom of expression
Article 10 could be called upon by patients in support of their right to receive information considered by their doctor to be appropriate and necessary.
A case was brought before the European Court by two companies, Open Door Counselling Ltd. and Dublin Well Woman Centre, two counsellors working for the latter company and two women of child-bearing age. The applicants complained of an injunction imposed by the Irish courts restraining the companies or their employees from providing certain information to pregnant women concerning abortion facilities outside the jurisdiction of Ireland. The Court decided that the injunction constituted an interference with the right of the companies and the counsellors to impart information, as well as the rights of the other applicants to receive information. The Court recalled that freedom of expression is also applicable to information
or ideas
that offend, shock or disturb the State or any sector of the population. In this case it was important to note that the corporate applicants neither advocated nor encouraged abortion but solely explained available options. This interference was considered to be disproportionate to the aims pursued. The protection of the right to life of the unborn was a legitimate aim and the Court acknowledged that the national authorities enjoyed a wide margin of appreciation in matters of morals. This power is however not unlimited. Taking into consideration the absolute nature of the injunction which imposed a perpetual
and absolute restraint, as well as the fact that the injunction appeared to have been largely ineffective in protecting the right to life of the unborn, the Court held that the injunction was disproportionate and therefore there had been a breach of Article 10 of the Convention. Moreover it noted that the injunction had actually created a risk to the health of women due to lack of proper counselling. (Open Door and Dublin Well Woman-v-Ireland (1992))
In the past doctors have been advised, by Health Authorities, not to inform patients that there is a course of treatment that could be beneficial for them because the treatment is not available on the NHS. Patients could challenge such instructions under Article 10 which gives them the right to receive information without interference by a public authority. There is a difference, however, between the right of the patient to challenge instructions, where the doctor is willing to give the information, and the doctor's positive obligation to inform the patient. Positive obligations may arise under Article 10 although these have yet to be fully explored. It is possible, however, that patients could take action in such circumstances using Article 8 since a failure to provide the information could mean that their consent was not valid and informed.
Article 10 - Summary
Article 10 could be used to challenge attempts by Health Authorities to restrict or influence the information to be provided to patients.
Article 12 - Right to marry and found a family
Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.
It has been suggested that Article 12 could be used to challenge decisions not to provide access to fertility treatment although the European Commission has stated that Article 12 does not give individuals an absolute right to be provided with assistance to conceive.
Gavin Mellor was serving a life sentence for murder when he met and married his wife. In 1997 he applied for permission to be allowed to inseminate his wife artificially arguing that Article 12 of the European Convention gave him the right to found a family. The Secretary of State refused the request on the grounds that artificial insemination was not needed for medical reasons but was sought in order to circumvent the normal consequences of imprisonment. Furthermore, he argued that there were serious concerns about the stability of the relationship which had not been tested under normal circumstances. Mr Justice Forbes held that the Secretary of State's decision did not contravene Mr Mellor's Article 12 rights. It had been clearly established that the Article 12 right to found a family did not mean that a person must be given, at all times, the actual possibility of procreating his descendants. In reality, what Mr Mellor was seeking was to be granted the privilege or benefit of being afforded access to artificial insemination services because an inevitable consequence of his lawful detention in custody was that it was impossible for his wife to conceive a child by natural means. The Secretary of State was therefore entitled to formulate a policy for dealing with such requests by prisoners to decide whether the privilege should be made available in a particular case. The application was dismissed. (R v Secretary of State for the Home Department, ex parte Gavin Mellor (2000) LTL 4/8/2000)
Article 12 is also relevant to applications to court for the sterilisation of incompetent adults. In Re A (Re A (Male Sterilisation) 2000 1 FLR 549), an application for the sterilisation of a 28-year-old man with Down syndrome was rejected. Reference was made in that case to A's right to privacy and to found a family and it was suggested that the view of A that he did not want the operation ought not to be ignored even though he was unable to understand its implication. In the Court of Appeal, Lady Justice Butler-Sloss warned that with the direct application of the European Convention on Human Rights to English domestic law imminent, the courts should be slow to take any step which might infringe the rights of those unable to speak for themselves.
Article 12 - Summary It is possible that Article 12 could be used to challenge decisions not to give access to fertility treatment or applications for enforced sterilisation.
Article 14 - Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth of other status.
This Article does not give a free standing right, but may only be invoked in a claim for some other Convention right. A blanket ban
on providing certain treatments on the ground of age, for example, may contravene patients' right to be free from torture, inhuman or degrading treatment (Article 3) and also their right to respect for private and family life (Article 8). Although Article 8(2) appears to allow derogation on the grounds of resources, such derogation must be applied without discrimination. An example of a breach of Article 14 could be rationing which appears solely based on age rather than evidence of effectiveness and benefit for the individual. Age discrimination falls within the ambit of Article 14, even though it is not mentioned explicitly, because the list in Article 14 is not exhaustive and includes other status
. Clinical indicators demonstrating that older people in general benefit less from a certain treatment may not be accepted as a justification if such arguments are applied in a blanket way rather than treatment decisions being based on individual assessment. It is very unlikely, however, that health authorities and individual doctors could be seen as obliged to provide futile, ineffective or unproven treatment. It is important, therefore, that attention is paid to the individual circumstances of each case and the requirements of the individual patient.
Article 14 - Summary Article 14 ensures that all individuals enjoy the Convention rights without discrimination. This means that blanket
decisions - based on age or medical condition - instead of decisions based on an assessment of the individual factors of the case, are likely to be challenged.
How can doctors determine whether interference with a right is legitimate?
Many decisions in medical practice involve patients' human rights. The rights that are affected need to be identified first. The next stage of the process is to consider whether it is legitimate, in the circumstances, to interfere with those rights. In order to assess this, it is necessary to be familiar with the concept of proportionality.
Proportionality
Any interference with a Convention right must be proportionate to the intended objective. This means that even if there is a legitimate reason for interfering with a particular right, the desired outcome must be sufficient to justify the level of interference proposed. This involves a similar thought process to that used by doctors in many contexts, for example, to decide whether a breach of confidentiality is justified in the public interest. In those cases, doctors must consider whether the legitimate aim in disclosing information (to prevent or detect a serious crime, for example) is sufficiently serious to justify breaching confidentiality. These decisions are made by balancing the competing interests and by careful assessment of the individual factors in the particular case. In some cases a breach of confidentiality will be justified and in others it will not and those making the decision may be called upon to justify their actions. Although the term proportionality
may be new to doctors, the concept is not.
The Decision-making Process
Deciding whether interference with a Convention right is legitimate requires consideration of the following:
a) Is an absolute right involved? If so, there can be no interference with it although there are issues of interpretation (see discussion of Article 3 above).
b) Is a limited or qualified right involved? If so,
The Human Rights Act allows judges to look at both the decision-making process and the merits of the decision (R-v-Ministry of Defence, ex p Smith [1996] Q.B. 517.) Therefore doctors' decisions are likely to be open to greater scrutiny and must be more transparent and properly recorded. Existing good practice, emphasising the importance of consultation and of carefully documenting decisions and the reasons for them, takes on greater importance.
As can be seen, the rights-based assessment required since the introduction of the Human Rights Act echoes very closely the type of decision-making process promoted in existing good practice guidelines. The main difference is the language which should be used to describe the decision making process, with terms such as rights
and proportionality
gradually being introduced into the medical lexicon. Decision making also needs to be approached and documented in an increasingly formal way so that doctors not only take account of the human rights aspects of the decisions they make but are also seen to have done so.
In every decision doctors must consider all Convention rights and must be able to demonstrate legitimate grounds for interfering with such rights. Where different rights come into conflict (such as Articles 2 and 3), the doctor must be able to justify choosing one over the other in a particular case. Any decision, either to provide or withhold treatment, could be open to challenge using the Human Rights Act. It is therefore essential to build into the decision-making process consideration of how the decision could be justified from a human rights perspective.
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