The impact of the Human Rights Act 1998 on medical decision making
October 2000
Which human rights are relevant?
Article 2 - Right to life
1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) In defence of any person from unlawful violence;
(b) In order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) In action lawfully taken for the purpose of quelling a riot or insurrection.
The introduction of a "right to life" in the Human Rights Act does not mean that doctors must always strive to prolong life but that specific consideration must be given to this right as part of the medical decision-making process. Article 2 imposes positive and negative obligations on public authorities (X-v-FRG Appl, (1984)), such that they have a duty to take adequate and appropriate steps to protect the life of individuals in their care (X-v-UK (1978) 14 DR 31), as well as not to take life intentionally. It is therefore arguable that a health care provider is obliged to make adequate provision for medical care in all cases where the right to life of a patient could be at risk, and that withholding or withdrawing any life prolonging treatment could be in breach of Article 2.
The extent of the public authority’s obligation, however, is limited to that which is reasonable (Osman-v-UK (1998) 29 EHRR 245). The UK courts began to consider human rights arguments before the Human Rights Act was implemented and in one of the first cases to specifically address the issue (A National Health Service Trust v D & Ors (2000) TLR 19/7/2000), Mr Justice Cazalet made clear that Article 2 does not require the prolongation of life in all circumstances (In considering whether the withdrawal of life-prolonging treatment would be contrary to Article 2, Mr Justice Cazalet said "[t]here does not appear to be a decision of the European Court which indicates that the approach adopted by the English courts in situations such as this is contrary to Article 2".). In that case, concerning non-resuscitation of a 19-month-old child ("I") who had severe disabilities and a very short life-expectancy, it was held that withholding life-prolonging treatment did not breach Article 2 because the decision was made on the basis of the child's best interests.
"I" was born in November 1998 and suffered from a severe, chronic, irreversible and worsening lung disease giving him a very short life expectancy. He also had heart failure, hepatic dysfunction and renal dysfunction with a background of severe developmental delay. When "I" was 19 months old the hospital applied to the court to be permitted to treat him as advised by his paediatrician; this would include non-resuscitation in the event of a respiratory and/or cardiac failure and the provision of palliative care to ease his suffering and to permit his life to end peacefully and with dignity. The parents strongly opposed the application considering it to be premature. Given the conflicting views that could not be resolved by discussion, or by seeking further medical opinions, a "best interests" application was made to the court.
Reports were considered from three consultant paediatricians, all of whom agreed that it was in the best interests of "I" that he should not be further subjected to resuscitation involving the provision of artificial ventilation and admission to paediatric intensive care. These decisions were reached on grounds of the invasive nature and risks of artificial ventilation and the distress, discomfort and pain caused by the treatment. In reaching his judgement, Mr Justice Cazalet stated that the court's clear respect for the sanctity of human life imposed a strong obligation in favour of taking all steps capable of preserving life, save in the most exceptional circumstances. In this case, however, he held that there could be no Article 2 infringement because the treatment authorised (non-resuscitation) was made in the best interests of "I".
(A National Health Service Trust v D & Ors (2000) TLR 19/7/2000)
That withdrawing or withholding treatment which has the potential to prolong life does not breach Article 2 where non-treatment is in the patient's best interests was confirmed in a subsequent case involving two patients in persistent vegetative state (pvs) (Judge confirms patients’ right to die. The Guardian 7 October 2000). The case, involving two patients Ms H and Mrs M, was heard in the High Court on 5 and 6 October 2000. Before the Human Rights Act was implemented, it was speculated that the common law position permitting the withdrawal of artificial nutrition and hydration from patients in pvs may be inconsistent with those patients’ right to life. The case, which was heard in the High Court just days after the Act’s implementation, however, confirmed that where withdrawal of artificial nutrition and hydration is in a patient’s best interests, there is no breach of Article 2.
To the extent that best interests remain central to the decision-making process, this reflects an extension, rather than a change, of existing good practice. Since the introduction of the Human Rights Act, however, the way in which best interests are assessed and the factors taken into account in reaching those decisions are likely to be open to far greater scrutiny. Doctors must be able to show that the patient's right to life was specifically considered and, where treatment is not provided, to demonstrate legitimate grounds for not taking steps to enforce that right.
Article 2 is also constrained by the concept of futility (LCB-v-UK Appl No 23413/94 (1998). The Times, 15 June 1998.) There is a lack of consensus about the meaning of futility, but it is possible that if treatment would have no effective result, then withholding it would not breach Article 2. It is for the court to decide whether futility should be considered from a ‘medical goal’ or a broader ‘best interests’ perspective.
Although people cannot generally waive their right to life by consenting to be killed, a competent adult may effectively waive his or her right to have life prolonged by making an informed refusal of life-prolonging treatment. Individuals may not, however, waive the right to have someone else's life prolonged, such as a dangerously ill child or an incompetent adult and nor can they require others to take active measures to end their life or that of someone else.
The positive duty on a public authority to protect life, under Article 2, requires it to take steps to prevent life-threatening conditions by, for example, vaccination programmes. It also includes a duty to inform the public of threats to life which could include a duty to warn of the effects of pollution, epidemics and perhaps risks such as BSE. This duty could extend to situations where a doctor knows that an individual patient is putting another identifiable individual at risk, for example, if a doctor is aware that a patient is knowingly exposing his or her partner to HIV infection, or has refused to inform close relatives that they are at risk of a serious, life-threatening genetic disorder for which avoiding action could be taken. People who are harmed by a doctor's failure to warn in such cases could claim that this breached their Article 2 right. In deciding whether to breach confidentiality, in these circumstances, however, the doctor needs to consider the patient's right to privacy, including under Article 8 (see section 2.5). The two conflicting rights would need to be balanced, based on the individual facts of the case, to decide which should take precedence; the doctor must be able to justify choosing one over the other. In practice the same type of analysis is required as before the Act came into force although the decision-making process and the reasonableness of the decision may now be open to greater scrutiny.
Treatment that could prolong life may sometimes be withheld on the grounds of scarce resources. Whilst it is open to a patient to argue that economic factors should not be taken into consideration in making treatment decisions, any claim under Article 2 would need to show that failing to provide treatment would lead to a real, perhaps inevitable, and immediate risk of death and that providing treatment was likely to avert that risk. Even if this case could be made, for example with some new expensive drugs for cancer patients, public authorities are only required to take those steps to avoid death that are "appropriate" and it appears that a shortage of resources may be a valid constraint to providing life-prolonging treatment. In reaching policy decisions about the allocation of resources, Health Authorities, or other decision-making bodies, must be able to show that they have considered their patients' Article 2 right, and must be able to justify interfering with that right. Such decisions must be transparent, logical and able to withstand scrutiny. The decision must also be non-discriminatory; a blanket age restriction on treatment such as cardiopulmonary resuscitation, for example, is likely to contravene Article 14 (see section 2.8). The court is unlikely to interfere in a particular case with a Health Authority's decisions on allocation of resources provided the appropriate procedures have been followed.
Article 2 does not state that everyone has the right to life, only to have that right protected by law. Traditionally, under UK law, an unborn child has no legal rights. However, it has been suggested that the right to life in Article 2 of the European Convention could extend to the unborn, in certain circumstances, so as to give the fetus, in some situations, a right to life. The European Court has avoided making a decision as to whether "everyone" includes the unborn child. Given, however, that individual states are allowed a wide margin of appreciation on matters of a moral nature, discussion on the subject within the European Commission (Paton-v-UK [1981] 3 EHRR 408. See also H V Norway (1990) (Case no. C-17004/90, unreported)) and the way UK law has developed in this area, it is unlikely that a fetus would be considered, by the UK courts, to have legal rights under the Human Rights Act. Until a case has been considered, however, the law on this matter, particularly in relation to viable fetuses, remains uncertain.
Article 2 - Summary
1. The patient's right to life under Article 2 should be specifically considered in any decision to withhold or withdraw life-prolonging treatment but this does not mean that treatment must always be provided. Treatment may be withdrawn if:
2. Article 2 may impose a duty on doctors to take steps to prevent life-threatening conditions and a duty to inform the public, or individuals, of threats to their life. Where this would involve a breach of confidentiality, this should be balanced against the patient's right to confidentiality.
3. Article 2 must be taken into account where potentially life-prolonging treatment is not provided on economic grounds. Any such decisions must be made in a non-discriminatory way and the decisions must hold up to scrutiny.
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