The Human Rights Act 1998 has been in the news recently, with certain politicians and other commentators lamenting the fact that British courts are bound by European Court rulings. David Cameron appears to be leading the crusade. He plans to use the UK’s forthcoming chairmanship of the Committee of Ministers of the Council of Europe to spearhead a radical shake-up of the European Court of Human Rights. But, leaving aside those relatively rare cases where the European Court disagrees with what have been the accepted norms in the UK, such as for example whether prisoners should have the right to vote, what effect has the Human Rights Act had on decisions within the medical sphere?

Right to treatment

Human rights arguments are frequently cited by patients in support of claims for the right to treatment on the NHS. One of the most recent decisions of this type was that of Condliff v North Staffordshire PCT, which arose from the refusal by the PCT to fund gastric bypass surgery for a morbidly obese man, the claimant. The PCT had guidelines in place on the basis of which it determined its funding decisions. These guidelines focused on clinical need and excluded the consideration of any social factors. The claimant contended that Article 8 of the European Court of Human Rights (the right to private and family life) required the PCT to take into account social factors.

The case went to the Court of Appeal and one of the judges, Lord Justice Toulson, commented that “Human rights law is sometimes in danger of becoming overcomplicated”.

The Court of Appeal judges rejected the submissions made on behalf of the claimant that the PCT, by refusing to consider social factors, was interfering with the claimant’s rights to private and family life. The Court of Appeal instead applauded the PCT for applying its policy in a nondiscriminatory fashion.

In the judgment, it was made clear that Article 8 did not impose a positive duty to provide medical treatment. It was accepted that there would always be difficulties in allocating the scarce resources available for healthcare. This has been the traditional approach of the courts when dealing with a demand for medical treatment.

Despite the courts’ reluctance to interfere in funding decisions, cases continue to be brought raising arguments based on the claimant’s human rights. In ongoing proceedings against Derbyshire PCT, a 15-year-old boy is seeking the prescription of a drug called Kuvan at a cost of £30,000 a year. The boy suffers from phenylketonuria (PKU), which means he cannot break down protein, and this has led to him being half his normal weight. The boy is restricted to a synthetic food diet. Kuvan would alleviate his condition and the boy is seeking three years’ treatment while he is in his growing phase.

The refusal of funding by Derbyshire PCT has led to the court proceedings, with the boy invoking Article 6 (right to a fair trial) and Article 8 (respect for family life). Article 6 is invoked because of the way the PCT reached its decision not to fund the drug. Under Article 8, it is alleged that both the boy’s mother and his siblings have suffered because of the stress placed on the family unit by the boy’s eating difficulties. The case is continuing.

Disciplinary proceedings

Human rights arguments are frequently raised in disciplinary proceedings, in particular Article 6 (the right to a fair hearing). An issue that often arises is whether a professional should be guaranteed legal representation. The courts’ approach here has been greatly clarified in a number of cases heard this year. In essence, Article 6 will not be engaged if only one particular job is at risk. It will apply, however, if the effect of the disciplinary proceedings will be effectively to bar the professional from practice altogether.

Regulatory proceedings

Regulatory proceedings can also attract human rights arguments, particularly on matters of evidence. In fitness to practise proceedings against “an eminent consultant paediatric cardiologist of international repute” (the claimant), the GMC sought to adduce hearsay evidence under Rule 34 of the General Medical Council (Fitness to Practise) Rules 2004. This was evidence from a witness based in Kenya of sexual misconduct by the claimant against boys and young men in Kenya. The Fitness to Practise Panel agreed that the hearsay evidence might be admitted and the claimant appealed that decision to the divisional court. The divisional court held the decision to be “irrational and… a breach of the claimant’s Article 6(1) right to a fair hearing”.

The court held that both the common law and Article 6 required the Fitness to Practise Panel to take into account the absence of important safeguards on the admissibility of hearsay evidence. One central concern was the removal of the ability to cross-examine the witness, in particular in circumstances where the upholding of the allegations against the medical professional was likely to have grave adverse consequences.

The judge, Stadlen J, did not accept the GMC’s argument that the gravity of the allegations was a factor in favour of allowing hearsay evidence – indeed, he took the contrary view. “ “The more serious the allegation, the greater the importance of ensuring that the accused doctor is afforded fair and proper procedural safeguards. There is no public interest in a wrong result.”

Right to life

Article 2 provides that “everyone’s right to life shall be protected by law” and this most fundamental of human rights has been reflected in the attitude of the court when faced with life or death situations. In M and Others v NHS Primary Healthcare Trust, the family of a minimally conscious patient was seeking a declaration permitting the withdrawal of artificial nutrition and hydration, which would cause the patient to die. The family argued that the patient had no quality of life and that, were she able to express her wishes, she would not want to be kept alive in such circumstances. The judge declined to grant the application and, when doing so, made it clear that the factor that carried substantial weight was the preservation of life. Furthermore, he said that any decision to end life-sustaining treatment of a minimally conscious patient would require the sanction of the court.

Conclusion

It is the case that human rights arguments will often apply in proceedings brought within the medical sphere. These may have served to bring into focus certain aspects of a case, but it is difficult to see how this focus has changed the outcome from that which would have appertained under the common law. That is perhaps not surprising given that the rights espoused by the European Court of Human Rights largely reflect our own values and ethical beliefs. The real battlefield for David Cameron, and others who share his concerns about the pre-eminence of Strasbourg, lies more in the sphere of social policy where the national law has conflicted with rulings by the European Court. It remains to be seen whether Strasbourg will always win in the future.