The Impact of Human Rights on Medical Law
David Hart QC
October 2002
The Impact of Human Rights on Medical Law Seminar Delivered on Monday 21st October 2002 On the fact of it, the European Convention on Human Rights has little to do with getting access to health care or even medical information. Its main concern is with civil and political rights, which are designed to protect the individual against state action, rather than facilitate the obtaining of benefits (e.g. care) from the state. But things are not that simple. Nor have the last 2 years since the coming into force of the Convention - via the Human Rights Act (HRA) - made matters much clearer. The overall message, however, to those in the front line of health care must be that (a) presume that almost all decisions about health care will have some potential impact upon somebody's human rights and (b) as a result it is imperative to ensure that the reasoning for reaching any adverse decision is (i) clear and (ii) Convention-compatible. After all, one must recall that since the HRA it is now unlawful for the NHS to act in breach of the Convention: s.6 of the HRA. I shall not touch on mental health, in respect of which Article 5 (unlawful detention) has already provided a significant case law and will continue to do so. That would warrant a series of lectures in itself.
Provision of Health Care
1) Article 2 provides that "Everyone's right to life shall be protected by law". It imposes on the state not only a duty to refrain from interfering with life but also a "positive duty to "take appropriate steps to safeguard life". (Association X v UK Application No 7154/75 14 DR 31). That case involved a complaint by a parents' pressure group that the vaccination of children was causing severe brain damage, and in some cases, death. The complaint was ruled inadmissible because the Commission did not accept on the evidence before it that the scheme was in fact poorly administered. But it is an interesting decision on the scope of Article 2. The Commission considered the duty on the State under this Article extended to the provision of adequate and appropriate medical care. This means that Article 2 requires not only that the state does not interfere with the right to life, but that it is now under a positive obligation to ensure that the right is respected. Before the incorporation of the Convention, English courts grappled with this issue in the leading case on rights to health care, R v Cambridge Health Authority ex parte B [1995] 2 All ER 129, in which Court of Appeal concluded that courts are ill-equipped to interfere in disputes over effectiveness of treatment or clinical judgment, and hence the decision of the Authority not to allow the treatment not unlawful. But this case was governed by domestic law in which the notion of reasonable care is, in effect, a sliding scale tagged to the availability of resources. Thus care could be capable of being viewed as "reasonable" even if in the circumstances it was inadequate for a patient's needs, so long as the reason for the inadequacy was a decision about a resource allocation that a reasonable doctor might have made. Will the advent of the Human Rights Act change this position? Does the Convention right to life impose a positive obligation on contracting states to fund life saving medical treatment? Does the idea of "adequate" care canvassed by Strasbourg involve an absolute standard of care to be provided, which would mean that the relevant doctor or NHS trust could not point to scarcity of resources to justify withholding certain treatment if the treatment then received fell below the objective standard of adequate? This issue has not been considered directly by the Strasbourg Court in the health care context. In a commission decision called X v Ireland (1976) 7 DR 78 the Commission acknowledged the need for appropriate public health measures to preserve life, without which Article 2 might be robbed of its effectiveness. But the Commission did not answer the question of whether this obligation extended to the provision of treatment for life-threatening conditions by the state. Given the absence of cases directly bearing on the resources issue, it is worth looking briefly at cases in other jurisdictions, especially South Africa. In Soobramooney v Minister of Health 4 BHRC 308, the appellant, terminally ill with renal failure, was refused admission to hospital for ongoing dialysis treatment because of a shortage of resources which compelled the hospital to implement guidelines precluding his admission. The applicant pointed to the right in the South African Constitution not to be refused emergency treatment, and said that this, construed together with the right to life, obliged the state to provide the resources necessary for the ongoing treatment of his chronic illness for the purpose of prolonging his life. The Constitutional Court held that the Respondent was not in breach of the requirement that "No one may be refused emergency medical treatment", because the absolute nature of that requirement had to be viewed in light of the further provision of the Constitution that "Everyone has the right to have access to health care services". When taken together, in the context of finite resources, the Court found that an unqualified obligation to meet health care needs, was impossible to fulfil. The fulfilment of one of the constitutional requirements would inevitably lead to a failure to meet the other. A balance had to be struck and if that balance was arrived at in good faith and on the basis of rational decisions by the Health Authority, the Court should be slow to interfere. In other words, the South African Court limited the scope of what appeared to be an absolute requirement by stipulating that it was enough for the State to act reasonably in the allocation of resources.
More recently, in the AIDS case, Minister of Health and Others v Treatment Action Campaign and others, July 5 2002, the Constitutional Court has taken a more interventionist stance in assessing the adequacy of health care against the Bill of Rights. In this case the applicant pressure group challenged the government's programme for restricting the availability of nevirapine in the public health sector and attacked the government's failure to implement a comprehensive programme to deal with mother-to-child transmission of HIV at birth. The applicants contended that these restrictions were unreasonable when measured against the Constitution, which commands the state and all its organs to give effect to the rights guaranteed by the Bill of Rights. They based their action on the right to health services under Section 27 and the right of children to basic nutrition and health care services under Section 28. The Court upheld the applicant's case that under Sections 27(1) and (2) of the Constitution the government was obliged to devise and implement within its available resources a comprehensive and co-ordinated programme to realise progressively the rights of pregnant women and their newborn children to have access to health services to combat mother-to-child transmission of HIV; and that the policy for reducing the risk of mother-to-child transmission of HIV as formulated and implemented by government fell short of compliance with these requirements.
Of course this case was based on the "social and economic" rights contained in the South African constitution which are not reflected in the European Convention; but the fact that the Court considered that these rights were justiciable and enforceable against the government marks something of a sea change in the approach to these resource based claims. Other cases There are a few other cases on this from jurisdictions with similar rights instruments to the Convention. In Shortland v Northland Health Limited (1999) 50 BMLR 255 the New Zealand Court of Appeal held that the right to life in the New Zealand Bill of Rights did not impose an obligation on the authorities to provide expensive medical treatment to extend life. The facts in this case were not dissimilar to those of Soobramooney. The applicant suffered from a potentially fatal kidney disease and required dialysis until a kidney transplant could be arranged. He also suffered from dementia and wasn't able to cooperate with the treatment. The health authority, acting within guidelines, refused a transplant and ceased dialysis. The Court rejected the claim that he had been deprived of life in breach of his constitutional right; in fact they went as far as to say that the Bill of Rights Act (New Zealand) Section 8 had not even been engaged since he had not been deprived of life, nor had there been a refusal to provide him with the necessaries of life. Consultation with an ethical body had not been necessary since no ethical questions were raised, nor was the consent of W's family required, since long term kidney dialysis in this case was clinically inappropriate. Conclusion on resource arguments in Article 2
Although health authorities responding to Article 2 challenges may take a certain amount of comfort from this caselaw, Article 2 really needs to be fleshed out by our own courts. The domestic courts in this country are likely to be required to consider whether a lack of resources will provide a defence to a claim that adequate medical provision should be made in accordance with Article 2. Some support for a restrictive approach on the terms of this positive obligation under Article 2 can be found in Osman v United Kingdom (1999) 29 EHRR 245. The Strasbourg Court found that where the harm is not foreseeable, the state had not breached its duty under Article 2 by failing to protect the individual from that harm. The Court said in that case that "bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation [under Article 2, to protect life] must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a convention requirement to take operational measures to prevent that risk from materialising.." For "policing" substitute "providing health care for", and you may have a decent resource-based defence to an Article 2 challenge in the medical field. But the target duty of section 3 of the NHS Act 1977 may have to be read in a way that is compatible with Article 2 of the Convention. It is possible that a case as pressing as ex parte B may be decided differently because of Article 2, especially if limited resources were the only defence available to the health authority. We return to this theme of resources when we come to consider the provisions of Article 8. But it will be immediately apparent that in cases where treatment is refused on resources grounds it is critical to justify decisions in a substantial and case-specific fashion. Investigating the Circumstances of Death This is another one of the implied requirements of Article 2 which is gaining ground in UK. Most of the Strasbourg jurisprudence on this is based on the copious caselaw against Turkey and its policy of oppressing Kurdish minorities in its troubled south east region: The right to life imposes a duty on the state to provide victims' families with adequate means of investigating the circumstances of death. In one of the most famous right to life cases, McCann v United Kingdom (1996) 21 EHRR 97, the Court said that the obligation to protect the right to life "includes a minimum requirement of a mechanism whereby the circumstances of a deprivation of life by the agents of a State may receive public and independent scrutiny." It found that the 19 day inquest into the deaths of the Gibraltar terrorist suspects fulfilled the requirements under Article 2. There are 2 Strasbourg cases where this has been explored in the medical context, though neither was successful on the facts. In Taylor and Others v UK (August 30 1994) 79 DR 127), the European Commission of Human Rights considered the NHS response to the Beverley Allitt case. The parents of children argued that there had been a violation of their rights under Article 2 in that the state had failed to set in place appropriate mechanisms for preventing the repetition of Nurse Allitt's killings. The fact that the inquiry was neither public, nor did it have the power to compel witnesses or obtain discovery of documents, and no examination or cross examination of witnesses by counsel was carried out all indicated that this inquiry was inadequate, and that the NHS suffered from systemic shortcomings such as under-staffing that risked other tragic events occurring in the future. The complaint was rejected on the facts since the Commission found that the possibility of civil proceedings against Allitt and the hospital, and an inquiry which had examined and made public its findings with regard to the procedures at fault in the hospital in question were sufficient mechanisms for bringing the facts of the case to light. The Commission rejected the applicant's argument that the general shortcomings of local health services could the justiciable matter under Article 2; "any doubts which may consequently arise as to the policies adopted in the field of public health are, in the Commission's opinion, matters for public and political debate which fall outside the scope of Article 2 and the other provisions of the Convention." In Powell v United Kingdom Application No 45305/99, 4 May 2000, the application related to the death of a child while being treated in an NHS hospital. The parents submitted that where a child has died as a result of negligence on the part of agents of the State there is an obligation on the State, not only to investigate the circumstances of the death, but also to provide accurate information to the next of kin about the circumstances in which the child died. These duties are derived not only from Article 2, but Articles 8 (which includes the right to physical integrity) and 10 (which includes the right to information). The Court concluded at this admissibility stage that the procedural obligation implicit in Article 2 cannot be confined to circumstances in which an individual has lost his life as a result of an act of violence. The obligation at issue extends to the need for an effective independent system for establishing the cause of death of an individual under the care and responsibility of health professionals and any liability on the part of those professionals. One must remember in all this that it is Article 2 that will form the central plank to any Convention based challenges regarding medical treatment where death or real and immediate risk to life has been the consequence of the inadequate health care. Where the consequences are not so severe, it is unlikely that the Convention may be relied on in actions against the NHS - since there is no express right to adequate health care in the Convention. That said, it is not difficult to foresee arguments in, say, a cerebral palsy case with assumed perinatal hypoxia, from the parents that the Hospital is under a duty to carry out a full and transparent investigation of the circumstances of the birth. At the moment, such inquiries tend to be low-key and deliberately informal. They may be either not documented or poorly documented, and may be carried out in such a way that any documents generated not have to be produced in litigation because they were prepared in contemplation of litigation. It must be doubtful whether this process is compliant with this Strasbourg-made extension to the scope of Article 2.
2) Article 3 "No-one shall be subjected to torture or to inhuman or degrading treatment or punishment"
Article 3 imposes a duty on the state to prevent individuals from suffering "inhuman or degrading treatment". The treatment in question must reach a high threshold of severity before it comes within the scope of Article 3. At first glance this would seem to have no conceivable application to local medical law, and indeed in Strasbourg it has only really made a mark in the context of deportation and expulsion cases, where the applicant argues that the lack of health care in the destination state would lead to treatment contrary to Article 3. The high point was D v United Kingdom (1997) 24 EHRR 423. A convicted drug trafficker in the terminal stages of AIDS was threatened with deportation to St Kitts. The Court accepted the argument that the absence of vital medical treatment would rapidly accelerate his death and that this breached Article 3. But Article 3 imposes a high threshold; the conditions to which the individual risks being exposed must be severe for him to get home under this Article. In some very rare cases, the Commission has held that medical treatment of an experimental character without the consent of the person involved could be considered under Article 3: X v Denmark (1983) 32 DR 282, where the applicant complained that a failed sterilisation operation had been performed in a different way to the procedure to which she had consented. In the end the Commission decided that that this particular operation could not be considered to be a medical experiment and did not, therefore, constitute a violation of Article 3. Domestically, however, there is little encouragement for such a claim. In R (Howard) v. Health Secretary [2002] 3 WLR 738, at 759 Scott Baker J thought that clinical negligence, however gross, could not found a claim under Article 3.
Article 8.1: "Everyone has the right to respect for his private and family life, his home and his correspondence"
8.2 "There shall be no such interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of??.public safety or the economic well-being of the country?.for the protection of health or morals, or for the protection of the rights and freedoms of others"
Article 8 is probably the most important right in the Convention as far as medical litigation is concerned. Implicit in the right to private life under Article 8 are a number of incohate rights which are directly applicable to medical procedures, such as the right to information and the right to moral and physical integrity.
Structure of Article 8 Article 8, unlike Articles 2 and 3, has its own set of clawback derogations which it is essential to concentrate on if one has or faces an Article 8 challenge. (a) What constitutes an interference? It is quite easy to establish a prima facie interference with the right to private life under Article 8, because it is so broad; any public authority, for example, which collects, holds, processes and withholds from an individual certain personal information such as medical data will be interfering with their private life. This is not the difficult part of Article 8; the real questions usually arise under Article 8(2) (b) Justifications It is not enough just to establish that the decision or practice under challenge fits into one of the specific justifications listed as "legitimate measures" under Article 8(2). The court has to be satisfied that the interference was "in accordance with the law". The principle of legality means something quite specific; the measure in question must be based on common or statute law that is sufficiently accessible and certain for the individual to predict its impact on his or her life. The measure in question must be "necessary", which brings in the idea of "proportionality". The greater the interference, the stronger the justification needs to be. Could some lesser interference have achieved the same object? Now to identify some of the implied rights which the Courts have found in Article 8. Right to information Article 8 may relate, not only to the right of an individual to prevent others from seeing medical information about him, but to his right to see that information himself. In most cases, access is provided for by statute (either the Access to Health Records Act 1990 or the Data Protection Act 1998 in respect of records created since November 1991), with statutory exemptions in, for example, the case where release of the information to the patient would be likely to cause serious physical or psychological harm to the patient. As far as the pre-HRA common law is concerned, the health authority is entitled to withhold information as part of its overriding duty to act at all times in the best interests of its patients - see R v Mid Glamorgan Family Health Services Authority, ex parte Martin [1995] 1 WLR 110 - though it is fair to say that the reasoning of that decision has come in for a rough ride from academics and other jurisdictions, notably Australia. Equally, clinicians and managers should not simply assume that, because they may withhold such information under the statute, it necessarily follows that such withholding is lawful. In such cases it will be necessary to consider the potential Article 8.1 right of the patient to have access to information which may be important to him (even if only for historical reasons) and then weigh that against the public benefit criteria in Article 8.2. Similarly, there may be circumstances where a public authority is under a Convention duty to generate and disseminate information about some health risk. 3 cases demonstrate this. In McGinley v United Kingdom (1999) 27 EHRR 1, a Strasbourg case, two ex servicemen wished to establish whether the health problems they had suffered from were connected to the fact that they had been in the vicinity of Christmas Island while nuclear testing had been carried out there in 1958. They sought the release of their medical records. When this was refused by the MoD, they alleged that the withholding of these documents which clearly affected their private lives breached Article 8. In the event this complaint was defeated for failure to exhaust local remedies but in reaching its conclusion the Court did say that there might be a positive obligation under Article 8, where the state is conducting hazardous activities, to put in place effective and accessible procedures whereby persons affected can get hold of the necessary information. The second case is Guerra v Italy (1998) 26 EHRR 357. The applicants lived within a mile of a chemical factory classified as high risk in terms of hazards to the environment and the local population. Some workers at the factory had died of cancer. One of their complaints was that the local authorities had not taken appropriate action to provide information about the risks that were posed by the factories, that would have allowed them to take steps to protect themselves. The Court found a violation of Article 8 - in other words, the failure to provide the applicants with relevant information had infringed the applicants' right to respect for private and family life. The Strasbourg Court is due to hear the third case shortly, though the claim has already been considered to be admissible: Roche v United Kingdom (Application No. 32555/96) Third Section, May 23 2002. Roche, a former soldier, had during his years of service participated in experiments at the Porton Down chemical test installation. These experiments, which took place between 1962 and 1964, exposed him to mustard gas and organophosphates. The applicant claimed a service pension based on illness alleged to be caused by that exposure. He applied to the Pensions Appeal Tribunal but documentation related to the aetiology of his illness, which was central to his case, was not forthcoming; the request for scientific and medical reports (whether published or prepared for internal use by Porton Down, the Ministry of Defence or other Governmental departments or agencies) on volunteer studies or experiments in Porton Down between 1957 and 1968 was refused on security grounds. The applicant complained that inadequate access to information about the tests which were performed on him in Porton Down constituted a violation of Article 8 of the Convention read alone or in conjunction with Article 14 of the Convention. The Strasbourg Court held that these and other complaints were admissible. Consent The issue of consent is obviously linked with the discussion on access to information because consent depends on the quality of the information given to the patient. In Sidaway the HL decided that a doctor's duty to inform the patient is an aspect of the doctor's duty to exercise reasonable care and skill, and not an aspect of the patient's right to know. The content of the duty is governed wholly by the Bolam principle according to which a doctor must pass on to the patient that information which is thought appropriate by a responsible body of medical opinion. It may be argued that viewing the need for consent through the spectacles of the doctor's "duty" is not consonant with the patient's Article 8 right to physical integrity.
There is a clear difference between information which it would not be negligent to decline to give to a patient and information to which the patient is reasonably entitled in order to make an informed decision, the test being that what the reasonably competent doctor regards as being significant on the one hand and what the reasonable ordinary patient regards as being of importance on the other.
Duty to provide treatment: resources again
We considered the positive obligations of the state and the NHS to provide adequate health care under Article 2. Article 8 implies a right to physical integrity : X and Y v Netherlands A 91 para 22 (1985). To what extent does the right of physical integrity under Article 8 impose an equivalent duty to that implied by Article 2? North West Lancashire HA v ADG [1999] Lloyds Medical Reports 399 The answer - in so far as it has been formulated by national courts - may be found in this gender reassignment case, albeit that this was decided before the coming into force of the Human Rights Act. Here the Court of Appeal considered the refusal of the applicant health authority to fund gender reassignment treatment for three transsexuals on the basis of their policy which gave a low priority to procedures which were considered clinically ineffective in terms of health gain. The appeal succeeded on other grounds. However, one of the submissions they made was that the health authority's decision breached Article 8. The Court rejected the general proposition that Article 8 could impose a positive obligation on the health authority to provide specific treatment. Buxton LJ said that "the ECHR jurisprudence demonstrates that a state can be guilty of such interference simply by inaction, though the cases in which that has been found do not seem to go beyond an obligation to adopt measures to prevent serious infractions of private or family life by subjects of the state?such an interference could hardly be founded on a refusal to fund medical treatment". If this judgment represents a foretaste of the approach of courts to this question in the future then many of the predictions concerning the impact of Article 8 may seem rather exaggerated. However, it would be wrong to assume that this robust approach will be necessarily be followed after the coming into force of the Act, as there is rather more Strasbourg support for the proposition than the Court of Appeal acknowledged. It may yet prove to be the case, therefore that health authorities may find that the virtual autonomy they currently enjoy, in determining how best to allocate the resources at their disposal may be restricted under the Human Rights Act. Patients' Rights to Privacy Other issues may arise under Article 8, such as the presence of several student doctors at the examination of a patient, or leaving patients on trolleys in corridors or other areas in which they may be viewed by members of the public. The right to privacy as a free standing Convention claim has now been recognised by domestic courts: see e.g.Douglas v Hello! Magazine, (2000) 2 All ER 289; A v B Plc and Another [2002] 3 WLR 542; R Secretary of State For The Home Department, Ex Parte Daly [2001] 1 WLR 2099. Again any practices involving such loss of privacy will have to be justified on some rational ground falling under Article 8.2.
Article 12: Reproductive Rights The right to found a family under Article 12 is already being tested in the courts by couples seeking to avail themselves of advances in medical reproductive techniques. The Commission has said the right to found a family imposes an "absolute" right which the state has no grounds for infringing in any circumstances - see X v UK No 6564/74 2 DR 105. However it is firmly established that Article 12 does not create an absolute right to procreate descendants. Thus a prisoner's application for judicial review of the Home Department's refusal to allow him to be artifically inseminated by his wife was turned down; Article 12 could no more found a right to artificial reproductive techniques for prisoners than it could guarantee such a right to free citizens (R v Secretary of State for the Home Department, ex parte Mellor [2001] 3 WLR 533. Nor could Article 12 in conjunction with Article 8 form a basis for the argument that the NHS should necessarily fund surrogacy treatment required because the patient had been rendered infertile by an earlier negligent delivery (Briody v St Helen's & Knowsley Area Health Authority (June 29, 2001)).
Article 14 "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?..property, birth or other status"
The right not to be discriminated against in the enjoyment of other rights in the Convention is potentially a very useful one in medical litigation, because even if the applicant does not get home on the substantive right, such as Article 2 or Article 8, it may still be open to argue discrimination in breach of the Human Rights Act. Claimants have to identify a difference in treatment between themselves and others attributable to one of these categories, even though the treatment they receive could otherwise be justified under the Convention.
The Court has recently decided in the landlord and tenant context that Article 14 prohibits discrimination on grounds of social status and income (which arguably are implicit in the prohibited ground of "property" in the wording of Article 14). It might therefore be open to an individual who has been refused treatment on the NHS to argue that such treatment is available to more properous patients able to avail themselves of private healthcare; Article 14 is therefore applicable in Article 2 cases, where the treatment sought is emergency lifesaving treatment, or in Article 12 cases, where the medical technology in question is in vitro fertilisation or some other progressive form of reproductive medicine. More contentiously, it could be argued that the withholding of some forms of health care on the basis of a patient's age could constitute unlawful discrimination under Article 14 in conjunction with one of the other substantive rights, such as Articles 2, 3 or 8. Some would say that covert rationing by the NHS under the guise of clinical judgments has for example deprived people over a certain age of the provision of cardiological services. It might be said that the whole concept of Quality Adjusted Life Years or QALY is discriminatory against those who fall into the status of being old. That would constitute discrimination under the open ended "other status" ground mentioned in Article 14. Age has been considered a prohibited ground for discrimination in other cases by Strasbourg: Sutherland v United Kingdom (1997) 24 EHRR CD 89 differing ages of consent for heterosexual and homosexual relations were judged discriminatory and in Gudmundsson v Iceland (1996) 21 EHRR CD 22 age limits for taxi licences only in certain areas were held to breach Article 14. Any treatment given to a patient which has the effect of preserving or extending life arguably falls within the ambit of Article 2 (the action does not need to breach the right in order to engage Article 14).
Private medicine
The Human Rights Act applies only to the actions or inactions of public authorities, so it might be thought that private medical care is entirely unaffected by the Convention and the Act. But again things are not so straightforward. This is because under s.6 of the Act the courts are themselves public authorities. So, when the courts decide disputes between someone whose rights have been interfered with and a private defendant, the courts are bound to act in a way which is compatible with the Convention.
Conclusion The conclusions which clinicians and managers should draw from this can be simply stated. Contrary to some rather Nostradamus-like predictions, the Convention has not given rise to a whole flood of claims. Nor can those managing such risks be complacent. The Convention, as interpreted, can be used plausibly to underpin a wide range of complaints by patients about health care. In many case some potential "interference" will be found, which in pre-Convention days would not have existed or existed only in a weaker form. It is then up to the NHS to justify its stance, and the earlier that detailed justification emerges in the correspondence, the better. The Courts have been increasingly keen to look at such justifications with some care, and to examine, sometimes with a degree of scepticism about the stated reasoning - particularly when a somewhat uninformative letter of refusal expands into a whole stream of reasoning which only emerges once proceedings are begun.
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