The impact of the Human Rights Act 1998 on medical decision making


October 2000

Which human rights are relevant?
Articles 2, 3, 5, 6, 8, 9, 10, 12 and 14 are likely to be the most relevant to medical decisions although other Articles may also be relevant. Convention rights are divided into three types:
  • absolute rights (Article 3, 4 and 7), from which no derogation is permitted although even these rights are open to interpretation;
  • limited rights (Article 2, 5 and 6) where the limitations are explicitly stated in the wording of the Article; and
  • qualified rights (Articles 8, 9, 10, 11 and 12) where derogation is permitted but any action must: be based in law, meet Convention aims, be non-discriminatory, necessary in a democratic society and proportionate.
Article 14 does not give a free standing right but may only be invoked in a claim for some other Convention right (see section 2.8).

Until a body of case law develops in the UK, it is unclear what impact the Human Rights Act will have on medical decision making. This guidance draws on existing cases from the European Court and Commission and advises on the likely impact of the Act on the day-to-day decisions of health professionals. It illustrates the way in which Convention rights are relevant to some common medical decisions. It is not possible to provide guidance for every scenario but the aim of this document is to use common examples to illustrate how a human rights approach can be incorporated into decision making, the general principles of which can then be applied to other situations. As UK case law develops and provides clarity on issues where it is only possible, at present, to speculate, additional information will be provided on the BMA's website.

Doctors are also affected by the Act in other ways, for example, as employers or employees and in relation to the protection of their own rights. In certain circumstances, for example, the duty placed on public authorities extends to taking measures designed to ensure the proper protection of staff from the infringement of their Convention rights by others (such as protecting doctors from violent or racially abusive patients [British Medical Association Medical Education Department (in press) Provision of care to violent and racially abusive patients, BMA: London.]. These aspects of the Act are not covered by this guidance, which is limited to medical decision making, but specific advice may be sought from the BMA on these and other matters concerning the legislation.

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