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The impact of the Human Rights Act 1998 on medical decision making

October 2000

Why is guidance needed?
What is the Human Rights Act?
The Human Rights Act 1998, which came fully into force on 2 October 2000, incorporates into UK law the bulk of the substantive rights set out in the European Convention on Human Rights. These include:

• Right to life (Article 2)
• Prohibition of torture, inhuman or degrading treatment or punishment (Article 3)
• Prohibition of slavery and forced labour (Article 4)
• Right to liberty and security (Article 5)
• Right to a fair trial (Article 6)
• No punishment without law (Article 7)
• Right to respect for private and family life (Article 8)
• Freedom of thought, conscience and religion (Article 9)
• Freedom of expression (Article 10)
• Freedom of assembly and association (Article 11)
• Right to marry (Article 12)
• Prohibition of discrimination (Article 14)
• Restrictions on political activity of aliens (Article 16)
• Prohibition of abuse of rights (Article 17)
• Limitation on use of restrictions on rights (Article 18)

Those who believe their rights have been violated by a public authority now have recourse to the UK courts whereas previously they would have had to take their case to the European Court in Strasbourg.

In addition, UK courts and tribunals (including those considering applications for court declarations) are required to take account of the Human Rights Act and to ensure that the development of the common law is compatible with the Convention rights. The way in which the UK courts will interpret the Convention rights and the impact these will have on medical decision making is a matter of speculation. Although the courts must take into account existing Strasbourg case law, the Convention is a ‘living instrument’, which means that it should be interpreted in the light of present day conditions. This means that interpretation must reflect changing social attitudes which include patient expectations and ethical standards. Therefore recent decisions are likely to be of most significance and it is important to maintain an awareness of the growing body of case law in the UK.

Why is the Human Rights Act relevant to medical treatment?
The Human Rights Act is relevant to health care providers since it regulates the relationship between individuals and public authorities. It is unlawful for public authorities ‘to act in a way which is incompatible with a Convention right’. The description of a public authority given in the Act includes: the Department of Health, health authorities, Health Trusts, Primary Care Groups and Trusts in England, Primary Care Trusts in Scotland, Local Health Groups in Wales and the equivalent bodies, still to be established, in Northern Ireland. Individual doctors working within the NHS are almost certainly public authorities and it has been suggested that doctors working privately may also fall into that category. (The degree to which the work of private doctors is covered by the Act remains a matter of speculation and once this matter has been clarified the BMA will include information on its website) This means that from October 2000 doctors working within the NHS throughout the UK are required by law to observe the Convention rights in reaching decisions and must be able to demonstrate that they have done so. Even if it emerges that private doctors are not classed as public authorities, the BMA believes, as a matter of good practice, that all doctors should ensure that their decisions are compliant with the Act.

Many doctors are not accustomed to thinking in terms of "rights" but one of the purposes of this guidance is to show the way in which accepted good practice, focused on patients' wishes and interests, closely echoes the requirements of the Human Rights Act. In many cases, considering Convention rights will not alter the final decision, but the way in which the decision is reached will differ (by specifically considering human rights issues) and there will be greater transparency and scrutiny of the decision-making process.

How will decision making differ?
Decision making by all public authorities must now be approached from a new perspective. In addition to the range of questions considered in the past, there are two further questions to ask in each case:

• Are someone’s human rights affected by the decision? And, if so,
• Is it legitimate to interfere with them?

It will take time for doctors to become sufficiently familiar with these new requirements for them to become a standard and routine part of the decision-making process. The dilemmas doctors are confronted with will not change but the terms within which they must address them will. Many aspects of existing good practice - such as careful assessment of best interests, balancing conflicting rights and consulting with patients and, as appropriate, their relatives - take on added importance as a result of the Human Rights Act, which makes them a required part of the decision-making process. Doctors are accustomed to taking into account the duties owed to patients and so the Human Rights Act should not involve major changes for them although decision making may initially take longer until this new way of thinking about those duties becomes incorporated into everyday practice. It is not, however, something doctors can opt out of and all their medical decisions are potentially open to challenge.