The impact of the Human Rights Act 1998 on medical decision making
October 2000
Which human rights are relevant?
Article 14 - Prohibition of discrimination
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, political or other opinion, national or social origin, association with a national minority, property, birth of other status.
This Article does not give a free standing right, but may only be invoked in a claim for some other Convention right. A “blanket ban” on providing certain treatments on the ground of age, for example, may contravene patients' right to be free from torture, inhuman or degrading treatment (Article 3) and also their right to respect for private and family life (Article 8). Although Article 8(2) appears to allow derogation on the grounds of resources, such derogation must be applied without discrimination. An example of a breach of Article 14 could be rationing which appears solely based on age rather than evidence of effectiveness and benefit for the individual. Age discrimination falls within the ambit of Article 14, even though it is not mentioned explicitly, because the list in Article 14 is not exhaustive and includes “other status”. Clinical indicators demonstrating that older people in general benefit less from a certain treatment may not be accepted as a justification if such arguments are applied in a blanket way rather than treatment decisions being based on individual assessment. It is very unlikely, however, that health authorities and individual doctors could be seen as obliged to provide futile, ineffective or unproven treatment. It is important, therefore, that attention is paid to the individual circumstances of each case and the requirements of the individual patient.
Article 14 - Summary
Article 14 ensures that all individuals enjoy the Convention rights without discrimination. This means that "blanket" decisions - based on age or medical condition - instead of decisions based on an assessment of the individual factors of the case, are likely to be challenged.