The impact of the Human Rights Act 1998 on medical decision making
October 2000
Which human rights are relevant?
Article 3 - prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 3 is an absolute right, allowing no derogations but it can be interpreted in various ways. Whether an act constitutes inhuman or degrading treatment depends upon a range of factors and the individual circumstances of each case. Withholding proper medical care in a case where someone is suffering from a serious illness could, in certain circumstances, amount to treatment contrary to Article 3 (although how ‘proper medical care’ should be defined is a matter of debate and is ultimately for the courts to decide)(Tanko-v-Finland (1994)). Equally, however, providing invasive treatment contrary to the patient's expressed wish or his or her best interests - where, for example, the burdens outweigh the benefits - could also violate that patient's Article 3 rights. This latter interpretation was reinforced by a 1997 case before the European court (D-v-UK [1997] 24 EHRR 423), in which it was held that Article 3 includes the right to be allowed to die with dignity. Therefore either giving or withholding treatment could breach the patient's Article 3 rights, depending upon the individual circumstances.
D was born and spent most of his life in St Kitts. On arrival in the UK in 1993, seeking permission to enter for two weeks, he was found to be in possession of a substantial quantity of cocaine and was sentenced to six years' imprisonment. While in prison D was found to be HIV positive and developed AIDS for which he was receiving medical treatment. On his release from prison on licence, D applied to remain in the UK on compassionate grounds so that he could continue to receive the level of medical care he needed. This request was turned down and D took his case to the European Court of Human Rights.
D's solicitor argued that removal to St Kitts would entail the loss of the medical treatment D was currently receiving, thereby shortening his life expectancy. Furthermore such action would condemn him to spend the rest of his remaining days in pain and suffering in conditions of isolation, squalor and destitution. The Court held that, although it could not be said that the conditions which would confront him in the receiving country were themselves a breach of the standards of Article 3, D's removal to St Kitts would expose him to a real risk of dying under most distressing circumstances and would thus amount to inhuman treatment in violation of Article 3.
D-v- UK [1997] 24 EHRR 423
In addition to differing interpretations of individual rights, there are also some cases in which different rights appear to conflict. In some cases, for example, Articles 2 and 3 will come into conflict if withholding treatment would lead to the death of the patient but providing it could be classed as inhuman or degrading treatment. In the case of "I" referred to above, Mr Justice Cazalet decided that, given the individual circumstances of that case, the best interests of "I" was that his right to be allowed to die with dignity should be upheld. In this case, Article 3 took precedence over Article 2; this will not always be the case. In every decision all Convention rights must be considered and where they conflict, the doctor must be able to justify choosing one over the other.
The European Court has established that medical treatment without consent could, in extreme circumstances, be considered inhuman or degrading treatment (Herczegfalvy-v-Austria (1992) 15 EHRR 437). Where, as UK law permits, treatment is provided to an incompetent patient in his or her best interests, Article 3 is not violated (X-v-FRG (1984) 7 EHRR CD 152). If, on the other hand, the treatment has been refused by a competent patient, or it was known that the patient would not have given consent to the treatment, or the patient had refused the treatment through an advance directive (See, for example, British Medical Association (1995) Advance Statements About Medical Treatment , BMA: London), and the effect on the patient is sufficiently serious, providing treatment could be deemed to breach the patient's Article 3 rights. The threshold set by the courts, however, is very high and it would need to be shown that the effect of the decision was sufficiently serious to fall within the scope of Article 3. Treatment without valid consent could also be deemed to breach Article 8 (see section 2.8).
From 1972 to 1984 Mr Herczegfalvy was compulsorily detained in Austria, some of the time in prison and, intermittently, in a psychiatric hospital after he was diagnosed as suffering from paranoia querulans. On a number of occasions during this period he went on hunger strike and was force-fed. Mr Herczegfalvy also refused to consent to any medical examination or treatment but was given sedatives and other medication against his will. In order to administer the treatment in the face of his aggression and death threats, he was attached to a security bed or was handcuffed with a belt around his ankles. After his release in 1984, Mr Herczegfalvy made a number of complaints about his treatment, including a claim under Article 3 that the forcible administration of food and neuroleptics and the use of handcuffs and the security bed to administer the treatment constituted inhuman or degrading treatment.
The Court considered that the position of inferiority and powerlessness which was typical of patients confined in psychiatric hospitals called for increased vigilance in reviewing whether the Convention had been complied with. It held, however, that it was for the medical authorities to decide, on the basis of the recognised rules of medical science, and on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves. The court went on to say that, as a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading but that medical necessity must be convincingly shown to exist. In the case of Mr Herczegfalvy, it was held that the evidence was not sufficient to disprove that the medical necessity justified the treatment and that there had not been a violation of Article 3.
Herczegfalvy-v-Austria (1992) 15 EHRR 437
Failure to provide information could, in extreme cases, be classed as inhuman or degrading treatment. For example, parents who belatedly discovered that their deceased child's organs had been retained and used for research may be caused great anguish and distress. Failure to provide information about what had happened to the organs could be seen to breach Article 3.
Refusing to provide treatment for a patient because of some personal characteristic, such as age, sexual orientation or physical or mental handicap, might also be considered a breach of Article 3, amounting to inhuman or degrading treatment. This Article prohibits treatments that ‘lower the individual in rank, position, reputation or character, whether in his own eyes or the eyes of other people’ (East African Asians –v-UK 1981). In a 1994 case before the European court it was held that not providing medical treatment to patients in custody was a breach of Article 3 (Hurtado-v-Switzerland (1994)). The same may be true if treatment that would clearly benefit them is withheld from elderly patients who are dependent on the NHS for the provision of medical care.
Article 3 - Summary
Patients have a right under Article 3 to be protected from inhuman or degrading treatment. Whether the treatment is "inhuman or degrading" depends upon the individual circumstances of the case, in particular, whether it reaches the high threshold of gravity set by the court. Such cases are likely to be exceptional but could include, for example:
The individual factors of the case need to be assessed to decide how "inhuman or degrading treatment" should be interpreted.
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