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

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human rights and health care practical application

Human Rights and health care – practical application

Chris Cox

Director of Legal Services

Royal College of Nursing

human rights overview
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
human rights overview3
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
protected rights
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
protected rights5
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
unlawful discrimination
Unlawful discrimination
  • Article 14
  • Not free-standing
  • ‘Other status’
  • Defining ‘disability’
  • Meaning of discrimination - identifying comparator
  • ‘Objective and reasonable justification’
  • Indirect discrimination
illustrations
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)
hra management tool
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
hra checklist
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
illustration restricting access to a drug treatment
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?
clinical negligence
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
accessing treatment
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?
degrading treatment and article 3
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’
competency and consent
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
health records and confidentiality
Health records and confidentiality
  • Article 8
  • Z v Finland (1998)
  • Data Protection Act 1998
right to marry and found a family
Right to marry and found a family
  • Article 12
  • Disabled people and parenting
  • Fertility treatment and Article 14
  • Sterilisation
private life and article 8
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’
restraint
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
restraint of children and young people
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
hra 98 1
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
hra 98 2
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
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