The impact of the Human Rights Act 1998 on medical decision making
October 2000
How can doctors show compliance with the Act?
How can doctors determine whether interference with a right is legitimate?
Many decisions in medical practice involve patients' human rights. The rights that are affected need to be identified first. The next stage of the process is to consider whether it is legitimate, in the circumstances, to interfere with those rights. In order to assess this, it is necessary to be familiar with the concept of proportionality.
Proportionality
Any interference with a Convention right must be proportionate to the intended objective. This means that even if there is a legitimate reason for interfering with a particular right, the desired outcome must be sufficient to justify the level of interference proposed. This involves a similar thought process to that used by doctors in many contexts, for example, to decide whether a breach of confidentiality is justified in the public interest. In those cases, doctors must consider whether the legitimate aim in disclosing information (to prevent or detect a serious crime, for example) is sufficiently serious to justify breaching confidentiality. These decisions are made by balancing the competing interests and by careful assessment of the individual factors in the particular case. In some cases a breach of confidentiality will be justified and in others it will not and those making the decision may be called upon to justify their actions. Although the term "proportionality" may be new to doctors, the concept is not.
The decision-making process
Deciding whether interference with a Convention right is legitimate requires consideration of the following:
a) Is an absolute right involved? If so, there can be no interference with it although there are issues of interpretation (see discussion of Article 3 above).
b) Is a limited or qualified right involved? If so,
- Refer to existing guidance from professional bodies to identify how similar cases have been judged.
- Is the proposed interference justified by the aim pursued? (Does it meet the proportionality rule?) It must:
- meet the objectives in question;
- not be arbitrary, unfair or irrational; and
- balance the need against the severity of the effect of impairing the right.
The Human Rights Act allows judges to look at both the decision-making process and the merits of the decision (R-v-Ministry of Defence, ex p Smith [1996] Q.B. 517.) Therefore doctors' decisions are likely to be open to greater scrutiny and must be more transparent and properly recorded. Existing good practice, emphasising the importance of consultation and of carefully documenting decisions and the reasons for them, takes on greater importance.
As can be seen, the rights-based assessment required since the introduction of the Human Rights Act echoes very closely the type of decision-making process promoted in existing good practice guidelines. The main difference is the language which should be used to describe the decision making process, with terms such as "rights" and "proportionality" gradually being introduced into the medical lexicon. Decision making also needs to be approached and documented in an increasingly formal way so that doctors not only take account of the human rights aspects of the decisions they make but are also seen to have done so.
In every decision doctors must consider all Convention rights and must be able to demonstrate legitimate grounds for interfering with such rights. Where different rights come into conflict (such as Articles 2 and 3), the doctor must be able to justify choosing one over the other in a particular case. Any decision, either to provide or withhold treatment, could be open to challenge using the Human Rights Act. It is therefore essential to build into the decision-making process consideration of how the decision could be justified from a human rights perspective.