The law concerning the delivery of health care

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“The Focus of Modern Health Care has been … on the Impact of Disease and the Way in Which it Affects the Human Body … On this Basis the Scope of Health Care Law will be Largely Confined to the Control of Disease and the Provision of Health Care Services.  Given the Influence of Modern Medicine on the Development of Health Care Services it is not surprising that this More Limited View Dominates the Modern English Legal Framework.” 

(Montgomery, J. Health Care Law 1st edition (1997))

“In Our View, Therefore, Medical Law is a Subset of Human Rights Law”  (Kennedy, I & A. Grubb. Medical Law 3rd edition (2000))

The law concerning the delivery of health care is constantly changing, and media attention is often attracted by the latest story on some legal aspect of the practice of medicine.  The source of healthcare law gives an indication of the magnitude of the subject and demonstrates, without embellishment, the wider influences that are brought to bear on our law makers when they consider issues of medical law. Such influences include human rights law, European Union law and the provisions of health care services. As a result, medical ethics and human rights issues now command much more attention in the medical profession and society. The UK government has committed itself under international law to the promotion of its citizen’s health and the prevention of disease.  Thus, the health care services in the UK have been constantly searching for effective methods for preventing disease.  The BMA believes that ‘The primary goal of medicine is to benefit the patient by restoring or maintaining the patient’s health as far as possible, maximising benefit and minimising harm’.

The ever expanding medical technology has allowed doctors to intervene with the human body from even before its biological conception and even after an irrevocable loss of consciousness. Society is frequently legally challenged to regulate new fields of medical activity that are ethically controversial. Legislators and judges are now called to intervene in areas that were previously seen as the exclusive domain of medical science. Thus, medical law is also recognised as a subset of human rights law. But, given the novelty of the problems raised, conventional human rights law may not offer ready answers.

There is no specific legal instrument that provides a patient with enforceable rights. The Patient’s Charter has no legal force and it is better to see the document as setting the standards that health care should aspire towards.  However, the Human Rights Act 1998 (HRA), which came into force on 2 October 2000, has provided that a number of rights that were previously protected by the European Convention on Human Rights, will be incorporated into English law.  These rights have had a major impact on UK health care law. Therefore, In addition, the judgements, although quite sparse at the moment, have started to proclaim on the human rights issue in health care.  One of the most important changes that the HRA brought to medical law was that individuals are now able to challenge public bodies directly in the domestic court when their protected human rights have been breached.  Individuals will no longer have to exhaust all the domestic provisions and then make slow and expensive trips to Strasbourg in order to claim a breach of one of their rights.  Furthermore, human rights issues in medical law can now be raised in all case and not just those where a direct challenge is available.

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Another consequence of the human rights act in medical law is that the judicial scrutiny of decisions made by public bodies has become more rigorous and the emphasis has moved away from the duty of the public body to the right of the individual.  This change has been explained by the Lord Chancellor, Lord Irvine, who stated; ‘The court’s decisions will be based on a more overtly principled, and perhaps moral, basis.  The court will look at the positive right.  It will only accept an interference with that right where a justification, allowed under the convention is made out … ...

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