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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

Chris Cox

Director of Legal Services

Royal College of Nursing


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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


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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


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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


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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


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Unlawful discrimination

  • Article 14

  • Not free-standing

  • ‘Other status’

  • Defining ‘disability’

  • Meaning of discrimination - identifying comparator

  • ‘Objective and reasonable justification’

  • Indirect discrimination


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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)


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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


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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


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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?


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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


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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?


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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’


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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


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Health records and confidentiality

  • Article 8

  • Z v Finland (1998)

  • Data Protection Act 1998


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Right to marry and found a family

  • Article 12

  • Disabled people and parenting

  • Fertility treatment and Article 14

  • Sterilisation


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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’


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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


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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


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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


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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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