The impact of the Human Rights Act 1998 on medical decision making
October 2000
Which human rights are relevant?
Article 9 – Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Article 9 is absolute so far as the right to belief is concerned, but qualified (permitting derogation) in respect of the right to act on one’s beliefs or oblige others to comply with them. A patient may object to treatment, or the parents of a child may object to treatment for the child, on religious grounds, even where withholding treatment may lead to death. If the medical professionals deem treatment to be in the best interests of the patient and necessary to preserve life, then a decision to treat or to withhold treatment must be made by balancing the competing rights of the patient under Article 9 and the positive obligation of the health authority under Article 2. The patient's right to be protected from inappropriate or unlawful treatment without consent (which may be claimed under Article 3) must also be taken into account.
It is possible that Article 9 could be used to claim a broader legal right to conscientious objection. Currently the only areas where doctors have a legal right to claim a conscientious objection are to participation in abortion and activities licensed under the Human Fertilisation and Embryology Act. The BMA, and other professional bodies, however, recognise an ethical right to claim a conscientious objection to a broader range of activities: prescribing contraception including emergency contraception, for example, and decisions to withhold or withdraw treatment, including artificial nutrition and hydration. It is possible that Article 9 could be used to strengthen such a claim and to challenge an employer's insistence upon involvement in such activities. It is still necessary for a doctor claiming a conscientious objection to refer the patient to another practitioner and to provide treatment in an emergency situation.
Article 9 - Summary
If an individual refuses life-prolonging treatment for him or herself or for another person on grounds of religion Article 9 must be considered. A decision to treat or to withhold treatment must be made by balancing the competing rights of the patient under Article 9 and the positive obligation of the health authority under Article 2. Where the patient is an adult, his or her rights to be protected from treatment without consent, must also be taken into account including, where the treatment would led to a sufficient level of suffering to engage Article 3, the right to be free from inhuman or degrading treatment.
Article 9 may also be used to extend the range of activities to which there is a legal right to claim a conscientious objection.
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