The Human Rights Act 1998 incorporates into domestic law the ECHR to which the UK has been committed since 1951. The Act modernises relationships between people and the State.

This was confirmed in a subsequent case involving two patients in persistent vegetative state.   Hence, best interests remain central in assessing whether the State has breached its positive obligation to protect life.  

Article 2 is also constrained by the concept of futility.   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 constitute a breach of the States positive obligation.  It is for the Court to decide whether futility should be considered from a ‘medical goal’ or a broader ‘best interests’ perspective.  The Court imposed a positive obligation to give treatment where that is in the best interests of the patient, but not where it would be futile. Discontinuing treatment would not be an intentional deprivation of life under Article 2; and provided that withdrawing treatment was in line with a respected body of medical opinion, that the patient would be unaware of the treatment and not suffering, there would be no torture under Article 3.

Treatment that could prolong life may sometimes be withheld on the grounds of scarce resources. Whilst it is open to argue that economic factors should not be taken into consideration in making 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 at that providing treatment was likely to avert that risk. It appears that a shortage of resources may be a valid constraint to providing life- prolonging treatment. In reaching policy decisions about that allocation of resources, Health Authorities, must be able to show that they have considered their patients’ Article 2 rights, and it must be able to justify interfering with that right. The decision must be non- discriminatory. The Court is unlikely to interfere in a particular case with a Health authority’s decisions on an allocation of resources providing the appropriate procedures have been followed. One such case is R v. Cambridge Health authority, ex parte B [1995].

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 and thus the State is under no positive obligation to protect it. However, it has been suggested that the right to life of the European Convention could extend to the unborn, in certain circumstances. The Court has avoided making a decision as to whether ‘everyone’ includes the unborn child. However, States are allowed a wide margin of appreciation on matters of a moral nature, discussions on the subject within the Commission and the way UK law has developed in this area, it is unlikely that a foetus would be considered, by the UK Courts, to have legal rights under the Human Rights Act. Until a case has being considered, however, the law on this matter, particularly in relation to viable foetuses, remains uncertain.

Having discussed the positive obligation arising in cases in relation to Article 2, let us turn to Article 3, the prohibition of torture.  

Article 3 imposes a two fold duty on signatory states.  The Member State must:

1 - Not use torture, inhumane or degrading treatment; and

2 – Take active steps to prevent this.

In Ireland v UK, the ECHR defined the 3 types of treatment under Article 3 as the following:

Torture: deliberate inhuman treatment causing very serious and cruel suffering.

Inhuman treatment: treatment that causes intense physical and mental suffering.

Degrading treatment: Treatment that arises in the victim a feeling of fear, anguish and inferiority capable of humiliating and debasing the victim and possibly breaking his/her moral resistance.

The extent to which the positive obligation’s of Article 3 reach will now be examined.

Authorities may be found to be in violation of Article 3 despite having no intention of doing so.  This can be illustrated in Price v UK the applicant had four non-functional limbs as well as suffering from kidney problems.  She was held in prison for contempt of Court.  Occasionally, she would be held over the toilet by male police officers, as she was unable to do this on her own accord.   The Court held that although the police didn’t intend to cause inhuman and degrading treatment; the actions did amount to it and thus a breach of Article 3.  

The State has a positive obligation to provide better facilities for disabled people and that even in the absence of intention; certain acts can amount to a breach of Article 3.

In the case of Bernard, the applicant tried to extend the State’s positive obligation under Article 3 even further. The applicant (a wheelchair bound woman) was unable to use her arms and legs and lived in a house with her husband and six kids. They were unable to pay the mortgage and thus went through a number of unsatisfactory housing situations.  The applicant and her family finally ended up in a small house with a lot of steps.  She was bound to one room and unable to use the toilet or participate in daily activities and hence took the London Borough to Court for not finding her proper housing.

The question arose of whether the State’s obligations under Article 3 extended to providing proper housing.  The Court concluded that the nature of the positive obligation of the State is to take steps to improve the situation rather than to actually achieve it.  Hence, in this case, although an extravagant demand from the State, it nearly became a breach of Article 3.  This kind of situation may eventually become a breach of Article 3 but this will depend on future cases and how the Courts interpret them.

        The issue also arises in cases where a patient suffering from a mental illness refuses to take treatment.  In R (on application of Wilkinson) v Responsible Medical Officer Broadmoor, the psychiatrist treating the applicant diagnosed him of psychiatric depression.  As the applicant was in a dangerous mental state, the psychiatrist wanted to give him a specific drug.  However, the difficulty arose when the applicant had decided that under no circumstances was he going to take the drug and therefore refused to corporate.

It is legal to impose mental treatment, as long as another psychiatrist also agrees that the treatment should be given.  Hence, in this case another psychiatrist was consulted and he too agreed that the treatment should be given.  As a result, they pinned the applicant down on to a bed and by force injected the drug into him.

This case gives rise to the issue of how far can one administer treatment by force without the applicant’s consent and when does it amount to degrading treatment?  Hence the authorities’ positive obligation to benefit the patient must be balanced with the force needed to impose the treatment on the patient.  Both must be proportionate or there is a danger that Article 3 would be infringed.  How much force is sufficient cannot be stated for certain as it is only through future cases that the scope will be set.

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.  Equally, however, providing invasive treatment contrary to the patient’s expressed wish of his/her best interests, where, for example, the burden outweighs the benefits, this could also violate that patient’s Article 3 rights.  This latter interpretation was reinforced by a 1997 case before the European Court, 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.

        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 death of the patient but providing it could be classed as inhuman or degrading treatment.  In the case of “I”, Lord 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 but this will not always be the case (see Diane Pretty case).  In every decision all conventional rights must be considered and where they conflict, the appropriate authorities must be able to justify choosing one over the other.

The ECHR has established that medical treatment without consent could, in extreme circumstances, be considered inhuman and degrading treatment.  Where as UK law permits, treatment as long as it is provided to an incompetent patient in his/her best interests, Article 3 is not violated.  If, on the other hand, the treatment is refused by a competent patient, or it was known that the patient would not have given consent to the treatment, 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.

        In Herczegfalvy v Austria, the applicant was compulsorily detained in Austria, after being diagnosed as suffering from paranoia querulous.  Here, the Court considered the position of inferiority and powerlessness which was typical in patients confined in psychiatric hospitals and called for increased vigilance in reviewing whether the Convention had been compiled with.  It held, 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.  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.  It was held that the evidence was insufficient to disprove that the medical necessity justified the treatment and that there had not been a violation of Article 3.

In a more recent case, the applicant went on hunger strike whilst in prison and hence was forcibly fed.  His complaint was of maltreatment contrary to Article 3, which was rejected.  The Court stated that forced feeding of a person does involve degrading elements, which in certain circumstances may be regarded as prohibited by Article 3. Under the convention the State is obliged to secure to everyone the right to life as set out in Art. 2.  Such an obligation should in certain circumstances call for positive action on the part of the State, in particular an active measure to save lives when the authorities have taken the person in question into their custody.  When, as in the present case, a detained person maintains a hunger strike this may inevitably lead to a conflict between an individual’s right to physical integrity and the State’s obligation under Art. 2.  A conflict, which is not, solved by the Convention itself.  

In Keenan, a young prisoner had committed suicide and his mother complained of a failure by the prisoner authorities to protect his life. Rejecting the complaint, the Court stated,
        ‘… that people who are in custody are in a vulnerable position and that there are authorities who are under a duty to protect them. It is incumbent on the State to account for any injuries suffered in custody, which obligation is particularly stringent where that individual dies.

        Refusal 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. In a 1994 case, it was held that not providing medical treatment to patients in custody was a breach of Article 3.  The same maybe true if treatment that would clearly benefit them is withheld from elderly patients who were dependent under NHS for the provision of medical care.

        Article 3 requires States to insure that individuals within their jurisdiction are not subjected to torture or inhuman and degrading treatment, including such treatment administered by private individuals.  A positive obligation on the State to provide protection against inhuman or degrading treatment has further arisen in a number of cases: see, for example, A v UK, where the child applicant had been caned by his stepfather, and Z & Others v UK, where four child applicants were severely abused and neglected by their parents. Also, in the case of DP v UK, a group of young adults took the local authority to Court on the grounds of failing to protect them from abusive parents who had in the past, sexually abused their children.  

The Court recognised that the circumstances gave rise to a positive obligation under Art.3 for the State to act.  However, went further on to state that in the circumstances, the State was not aware of the actions of the parents as the actions took place in private and they were entitled to enjoy this right to privacy.  Hence it was established that there was no breach of Article 3.  In order to succeed, the applicants would have to show that the State was aware of the inhuman and degrading treatment given to them and that no steps were taken by the State to prevent such treatment.  This shows that the State’s neglect must be of a very serious nature before it could be found that the State is in breach of its positive obligation.

In McFeeley v UK, [1980] the UK had imprisoned many terrorists/freedom fighters of Northern Ireland.  They had many privileges, which were withdrawn when it was revealed that discipline had completely broken down. This led to degrading and inhuman living conditions. The applicants argued that the State had a positive obligation to protect them from such degrading conditions by giving in to the applicants and as they did not, were in breach of Article 3.  The Court was critical of the inflexible attitude of the prison officers but held that there was ‘not necessarily’ a breach of Article 3. This case shows that it is entirely up to the Court to decide whether or not a breach of the positive obligation has occurred under Article 3 and hence one cannot fully state the extent of positive obligation.   However, as more and more cases emerge, a clearer picture will be able to be drawn.  The above case also shows the restrictive approach that the Court applies to cases where there is the question of a positive obligation on the State.  It seems reluctant in finding a breach where a positive duty has been imposed.

The State’s positive obligation to protect individuals from degrading and inhuman treatment is not merely confined to their country.  Their obligation is extended to protecting individuals who if deported will suffer degrading and inhuman treatment.  Hence, although the degrading treatment does not take place within the State, they may still be in breach of Article 3.  In Soering v UK, the applicant was a suspect of a murder crime in America, living in the UK.  The case concerned possible deportation to the US where the ‘death row phenomenon’ was regarded as inhuman punishment.  The Court made clear that the violation of the Convention in such circumstances is that of the sending State.  Hence, Article 3 can have an extra-territorial effect.  A similar incident arose in Vivarajah v UK [1987].  Here the applicant argued that he should not be deported because there was a great danger of him being subject to torture.  It was held that to deport someone to where they would be seriously molested would amount to a breach of Article 3 but the Court added that the threshold of this physical abuse was very high.  Hence from this case it is established that the State does have a positive obligation not to deport people where they will be seriously ill-treated.  The interpretation of what is serious is an issue left to the Courts.

        In D v UK, while in prison the applicant was found to be HIV positive and developed aids for which he was receiving medical treatment.  On his release from prison, he applied to remain in the UK so that the medical care could continue.  He argued that removal to St Kitts would entail the loss of medical treatment he was currently receiving, thereby shortening his life expectancy.  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, the applicant’s removal to St Kitts would expose him to a real risk of dying under most distressing circumstances and would thus mount to inhuman treatment.

This case gives rise to an interesting issue.  The disease that this applicant suffered is widely spread in Africa.  If a vast majority of people came to the UK, would the UK have a positive obligation to treat these people and would failure to treat these people constitute a breach of Article 3?  If this would be the outcome, then this would have tremendous financial implications on the State as well as immigration. Therefore, it is important to draw a balance between the positive obligation to protect such people and the national interest of the State.  The question of where the line is drawn arises.

Some indication can be taken from the case of Bernsaid v UK.  In this case the principle that was established was that, if the treatment was available in the country that the applicant was being deported, then regardless of how expensive that treatment was and whether the applicant would be able to afford it or not, the applicant could be deported.  In this instance, no positive obligation would arise and consequently there would be no breach.

This principle was reinforced in Cryz Varas v Swedan where the applicant suffered from depression and the act of deportation would worsen his condition.  It was held that this was unacceptable and wouldn’t therefore constitute a violation of Article 3.  The State was under no positive obligation.  In addition to this situation, the State is under no positive obligation to assist someone to prosecute another state for breach of Article 3. 

CONCLUSION

Member States have a positive obligation to protect individuals from degrading and inhuman treatment, and to protect life. The ECHR realises the vast duties and obligations of the State and thus does not want to burden Member States too much. As a result the extent to which the Member States have a positive obligation although wide, it is very unlikely that a violation is found unless it is of a very serious nature.  For a breach to take place, it has to be first proven that the Member State was fully aware that the applicant’s life was in danger or that there was a danger of him/her being subject to degrading/inhuman treatment.  Where the Member State is aware of this, it is sufficient for the Member State to show that everything that could be reasonably expected in the circumstances was done, and as long as the State has not totally disregarded the situation, it is extremely unlikely that a breach would be found.  This obligation is also restricted to costs.

The cases discussed give some indication of the extent of positive obligation on each Member State.  Whether the extent of the positive obligation will be further extended can only be determined by future cases.

---

BIBLIOGRAPHY

Primary sources:

See  footnotes.

Secondary sources:

1 – Brown, N. (2000), Positive Obligations, Public Authorities & the Human Rights Act,  Human Rights & UK Practice, 1(7), pp.16-17.

2 – Brown, N. (2002), State’s Positive obligations to patients, Human Rights & UK Practice, 3(1), pp.21-22.

3 – Clayton, R., and Tomlinson, H., (2000), The Law of Human Rights, 2nd ed. Oxford: Clarendon Press.

4 – Feldman, D. (1993), Civil Liberties & Human Rights, 1st ed. Oxford: Clarendon Press.

5 – Ovey, C. and White, R. (2002), Jacobs & White European Convention on Human Rights, 3rd ed. Oxford: Oxford University Press.

---