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 patients
  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
  patients 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