"The Focus

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 … It will need to be satisfied that the interference with protected right is justified in the public interests in a free democratic society. Moreover, the courts will in this area have to apply the convention principle of proportionality.’  Proportionality replaced the previous test of Wednesbury ‘unreasonableness’.  It has three elements: firstly there must be a legitimate aim, such as, the protection of public health; secondly, it must be necessary, that is, it could not have been achieved by a method which was less invasive of individual rights; and finally, the degree of infringement of the individual’s right must be justified and no greater than is necessary to achieve the legitimate aim.  A further consequence of human rights in medical law is that is possible ‘primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the convention rights.’  The Human Rights Act has been hailed as the biggest legal and constitutional reform since the 1689 Bill of Rights. It could provide fertile ground for those dissatisfied with what the NHS has to offer. The Act has appeared in several health law cases over the past couple of years, its significance makes it essential that NHS bodies understand and consider the possible implications of the legislation. The incorporation of the European Convention of Human Rights gives various rights to individuals such as rights to life, to liberty and security of the person, to respect for private and family life and to freedom from torture or inhuman and degrading punishment. All these consequences of the Human Rights Act clearly shows that it plays a major role in modern health care law.

On the other hand, it has been argued that at the heart of the deepening crisis in health care today is the failure of the existing medical system to prevent the majority of diseases.  It has also been claimed that this problem cannot be resolved just through increased funding or more efficient organisation of the National Health Service.  These hazards have been documented by many reports in scientific journals.  Preventing diseases and promoting health that was the inspiration for the founding of the NHS over 50 years ago.  In the words of one of the founders, William Beveridge: "Can we create a situation in which the medical, nursing, and social work professionals will be engaged mainly in promoting positive health, rather than, as at present, being strained to deal with a demand for services over which they appear to have no control and can only contain by some arbitrary method of rationing?".  The focus on prevention will allow more prompt and efficient attention to the sick, since effective prevention is the best way to relieve pressure on medical services.  This will also enable people with less serious disorders to receive medical attention at an earlier stage, when their condition can be more easily treated and thereby prevented from progressing to a more serious condition.  

Millions of people in Britain suffer from chronic disorders. Even the most advanced and expensive methods of treatment used in the current health system have been unable to prevent and treat these conditions successfully. Guaranteeing quality in healthcare provision and disease prevention is one the key Government health policies. New organisations such as NICE (National Institute of Clinical Excellence), CHI (Commission for Health Improvement) and NPSA (National Patient Safety Agency) have been created to help improve the quality of healthcare provision in the NHS. Patients today expect far more and are more prepared to litigate and complain.  The strategy sets out to: describe the scope and nature of the threat posed by infectious diseases to the health of the population of England; and establish the priorities for action to combat the present as well as possible future threat posed by infectious diseases. The strategy set out in the Government’s White Paper ‘Saving Lives: Our Healthier Nation’ describes the scope and nature of the threat posed by infectious diseases to the health of the population of England; and establishes the priorities for action to combat the present as well as possible future threat posed by infectious diseases.  However, modern health care law is not confined to the control of disease and provision of health care services, as described by Montgomery.  This is because the government pays only lip service to preventive medicine, with less than 1% of the NHS budget spent on the prevention and control of disease.  Furthermore, in the UK the major infectious diseases kill only a small number of people compared to the past.  This is mainly due to vast medical advances in the past and due to this it no longer dominates the modern English legal framework.

The different methods of acting ethically, such as deontological or utilitarian, all have their negative aspects, but they are all agreed that the primary aspect of doing the right thing is to respect the individual. Thus, modern medical law has increasingly been regarded in terms of human rights.   This has been summarised by George Annas who stated that the rights of a vulnerable, desperately ill patient should be recognised and ‘…the provider-patient relationship should be made more equitable, and that the status of the patient should be improved with this goal in mind.’  Medical law often has to consider the rights of people who are either temporarily or permanently incapable of communicating demands, such as the severely mentally handicapped.  The issue of the human rights of these individuals would be paramount in modern health care law.  This has also been recognised by Rawls and Dworkin, who also believe these individuals should be respected and should be given human rights. In one of the leading cases on this topic, the House of Lords in Airedale NHS Trust v Bland carefully analysed the possible rights of a patient in a persistent vegetative state.  The House of Lords expressed clearly that the right to life, the right to die and the right to the utmost dignity at the end of life and in memory were considered relevant.  In Airedale NHS Trust v Bland the doctor and patient relationship was linked together more strongly than ever before by considering the rights of a patient and the duty of a doctor. This case considered the impact of article 2 of the European Convention, where the issue was the termination of a life support machine for a patient in a permanent vegetative state. It appears that petitions under the convention which involve medical matters in the UK will only increase.  Therefore as a result medical law is becoming increasingly connected to human rights.

The meaning of ‘everyone’ under article 12 was considered prior to the act coming into force.  In Re MB, it was decided that the foetus was certainly not protected prior to viability, and probably was not protected at all by article 12.  ‘English law has not recognised the foetus as a person to whom rights may be attributed’.  Thus, abortion does not contravene the HRA 1998 and pregnant women still have the right to refuse treatment even if it results in the death of the foetus.  This clearly shows that modern health care law is coexisting alongside human rights law.

Under Article 8 of the European convention ‘everyone has the right to respect for his private and family life, his home and his correspondence’.  It is arguable that this right allows the individual the right to be informed about decisions that affect his life. Prior to the Human rights Act (1998), there was no legal obligation for patients to be informed about decisions not to offer a particular treatment.  ‘Do not resuscitate’ orders could be lawfully made and entered into the patient’s notes without any consultation, even though this practice may have breached professional ethics. The protection offered by Article 8 means that patients or their parents (in the case of children) should be consulted over these decisions. This follows by analogy from W v Uk (1987) which involved the right of parents to be involved in decisions concerning children taken in to care.  The ECHR stated: ‘In the Court’s view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision making progress … to a degree sufficient to provide them with the requisite protection of their interest’.   Therefore the human rights aspect of the medical law had a direct influence on the outcome.  

On the whole it is evident that the prevention of disease and health care provisions in the UK no longer dominates modern health care law.  It is still an important issue in relation to the legal framework of medical law.  However, it is clear that modern medical law is a subset of human rights law, as stated by Kennedy and Grubb.  This is a more accurate description of current UK law because human rights are becoming increasingly important issues in the public domain.   Probably the most important recent development of medical law was the enactment of the Human Rights Act (1998) in 2000.  The case law from the European Court and the Commission is now directly applicable in the UK.  The views of Kennedy and Grubb are that human right is currently the glue that joins together apparently dissimilar elements of law.  They believe this is mainly due to the absence of constant views expressed by legislation or common law on autonomy, respect for dignity, truth telling and consent. It may be that, in time, respect for articulated human rights can lead to the creation of a more coherent framework that will explain medical law and will also act as a guide to actions that may be proposed in the future.  Current English law is not quite at that stage yet.

 

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