Equality and Human Rights Commission

This guide examines the implications of the Human Rights Act for health care provision. It explains, with extensive reference to legal judgments and concepts, the workings of the HRA and the nature and significance of the rights contained in the European Convention on Human Rights which the Act makes part of domestic law. The guide will help health care professionals identify areas where human rights issues are likely to arise. It offers advice on how best to fulfil obligations under the Convention when making decisions (for example, on treatment and the allocation of resources), in order to reduce the risk of litigation. The guide also presents the HRA as a vehicle for developing a culture of respect for human rights within the health sector. However, the guide will primarily satisfy those seeking a detailed understanding of the HRA as a legal tool.

• A breach of a Convention right may occur either through action or inaction. Public authorities must not merely refrain from interfering with an individual's rights but must also take positive steps to secure those rights.
• Proportionality is 'the most crucial concept in the Convention'. It is the means of striking a 'fair balance' between the rights of an individual and the legitimate rights of others and the needs of society.

The international context

The guide explains that the Human Rights Act (HRA) and European Convention on Human Rights (ECHR) do not themselves establish a 'right to health' in the UK. This right is enshrined in other international human rights treaties that the UK Government is committed to - but these cannot be directly enforced by individuals in domestic courts.

Therefore, in the UK, the Convention rights contained in the HRA are the vehicle for resolving individual complaints on health and human rights matters. This guide explains in detail what those rights are and what implications they have for health professionals.

Which human rights?

The guide sets out the Convention rights which are particularly relevant to the health sector:

• the right to life
• the prohibition of torture and inhuman or degrading treatment
• the right to liberty and security of the person
• the right to a fair trial
• the right to respect for private and family life
• the right to marry
• prohibition of discrimination.

It explains the primary facets of each right and presents extracts of guidance from the British Medical Association as to the areas of practice, and the types of decision, that may carry a risk of legal challenge - and ways of reducing that risk.

For example, it notes that 'blanket' decisions on treatment (for example, based on age or medical condition) which do not give consideration to individual circumstances are vulnerable to challenge under the prohibition of discrimination.

Which areas of practice?

The guide examines in detail areas of practice where different human rights might be at risk of being breached. For each, it presents extracts of professional guidance and the lessons of relevant case law.

The areas of practice highlighted are:

• the provision or withholding of life-prolonging treatment - and the right to such treatment
• the duty of care and the implications of the ECHR for determining clinical negligence
• consent to treatment
• access to treatment
• medical confidentiality
• long term care
• regulation of health care professionals

Positive obligations

The guide explains that the breach of a Convention right may occur either through action or inaction. Public authorities must not merely refrain from interfering with an individual's rights but must also take positive steps to secure those rights.

Specifically, they must:

• put in place a legal framework for the effective protection of rights
• prevent breaches of rights, no matter who or what is causing the harm
• provide information and advice relevant to the breach of rights
• respond to breaches of rights; and
• provide resources for individuals to prevent breaches of rights.

The guide suggests areas of practice where positive obligations might come into play. These include:

• any decision to withhold or withdraw life-prolonging treatment
• providing information on health or environmental risks
• resource limitations

The Convention recognises that resources are not limitless; however positive obligations can come into play if a public authority:

• allocates resources in a discriminatory manner without valid justification
• fails to demonstrate awareness of the Convention in developing allocation priorities
• fails to record the reasoning behind those priorities
• operates arbitrary or blanket allocation systems which do not consider individual circumstances.

Proportionality

The guide suggests that proportionality is 'the most crucial concept in the Convention'. It is the means of striking a 'fair balance' between the rights of an individual and the legitimate rights of others and the needs of society.

Even where there is a legitimate purpose in restricting a Convention right, it must be shown that the actual restriction does not go beyond what is strictly necessary to achieve that purpose.

Health care organisations need to record how the decisions they take satisfy the requirements of the HRA and ECHR. Good record keeping is essential in order to show why decisions were made should actions (or inaction) later be challenged.

Implementation of human rights

The HRA came into force across the UK in 2000. The guide suggests that, in the early years of the Act, the emphasis was on negative compliance rather than a more positive embracing of human rights principles.

In many public authorities, there had been 'a more marked sense of 'infliction' than 'conviction' about the introduction of the HRA'.

However, the guide adds that 'a human rights culture is not new or alien to the health care sector': it works with the grain of existing good organisational and management practice.

The guide presents two 'checklists' for:

• service users who think their rights may have been breached, and
• health care professionals seeking to ensure that their actions are compliant.

Related equality messages (if applicable):

The guide does not directly address issues of equality.

Other important information

It should be noted that, since this guide was published in 2003, the guidance and the case law it cites may have been superseded: it should not therefore be used as a source of legal advice but will help professionals to know when they might need to seek advice.

The guide lacks everyday practice examples that might inspire practitioners to embed human rights principles in their work. These may be found in other, more recent guidance. However, the guide will satisfy those seeking a detailed understanding of the HRA as a legal tool and a reference point for areas of practice that carry a particularly high risk in the litigious environment of health care provision.

Date of review

April 2011

• Equality and Human Rights Group, Department of Health (2008) Human Rights in Healthcare - a framework for local action (2nd edition)
  http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/
  documents/digitalasset/dh_088972.pdf