The impact of the Human Rights Act 1998 on medical decision making
October 2000
Which human rights are relevant?
Article 10 - Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restriction or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Article 10 could be called upon by patients in support of their right to receive information considered by their doctor to be appropriate and necessary.
A case was brought before the European Court by two companies, Open Door Counselling Ltd. and Dublin Well Woman Centre, two counsellors working for the latter company and two women of child-bearing age. The applicants complained of an injunction imposed by the Irish courts restraining the companies or their employees from providing certain information to pregnant women concerning abortion facilities outside the jurisdiction of Ireland.
The Court decided that the injunction constituted an interference with the right of the companies and the counsellors to impart information, as well as the rights of the other applicants to receive information. The Court recalled that freedom of expression is also applicable to “information” or “ideas” that offend, shock or disturb the State or any sector of the population. In this case it was important to note that the corporate applicants neither advocated nor encouraged abortion but solely explained available options.
This interference was considered to be disproportionate to the aims pursued. The protection of the right to life of the unborn was a legitimate aim and the Court acknowledged that the national authorities enjoyed a wide margin of appreciation in matters of morals. This power is however not unlimited. Taking into consideration the absolute nature of the injunction which imposed a “perpetual” and absolute restraint, as well as the fact that the injunction appeared to have been largely ineffective in protecting the right to life of the unborn, the Court held that the injunction was disproportionate and therefore there had been a breach of Article 10 of the Convention. Moreover it noted that the injunction had actually created a risk to the health of women due to lack of proper counselling.
(Open Door and Dublin Well Woman-v-Ireland (1992))
In the past doctors have been advised, by Health Authorities, not to inform patients that there is a course of treatment that could be beneficial for them because the treatment is not available on the NHS. Patients could challenge such instructions under Article 10 which gives them the right to receive information without interference by a public authority. There is a difference, however, between the right of the patient to challenge instructions, where the doctor is willing to give the information, and the doctor's positive obligation to inform the patient. Positive obligations may arise under Article 10 although these have yet to be fully explored. It is possible, however, that patients could take action in such circumstances using Article 8 since a failure to provide the information could mean that their consent was not valid and informed.
Article 10 - Summary
Article 10 could be used to challenge attempts by Health Authorities to restrict or influence the information to be provided to patients.
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