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STUDENT'S GOPHER

Briefing for the use of students

HUMAN RIGHTS AWARENESS

FOR HEALTH CARE PROFESSIONALS

Part 2: Patients' Redress

Jay Woogara, EIHMS, University of Surrey

THE CONVENTION AS A USEFUL TOOL FOR PATIENTS TO SEEK REDRESS

According to the Human Rights Act 1998, NHS Trusts and all Health Authorities will be classed as "public authorities" and it obliges them to act in accordance with the European Convention of Human Rights. It is time then for all NHS Trusts, as part of their risk management strategy, to include the key principles of the Convention in their policies so that health professionals are aware of patients' rights that are enshrined within and thereby avert potential litigation.

RIGHT TO LIFE

It can be envisaged that upon incorporation patients may start demanding the right to life-saving treatment by relying upon Article 2 which clearly stipulates that "Everyone's right to life shall be protected by law". So far the NHS has been able to seek the support of the court in limiting life-saving treatment to those in most need. Even the criteria of determining 'patients in need' differ widely from one UK county to another. For example, should patients suffering from multiple sclerosis receive the latest drug available on the market despite its expense? Should all patients suffering from Alzheimer's Disease be placed on Arizept, which is not universally available on the NHS?

In the case of R v Cambridge Health Authority Ex Parte B ([1995] Vol. 2 129), Jayne Bowen (also known as child B) was refused treatment of bone marrow transplant for her acute myeloid leukaemic condition because the NHS would not pay for it. Allowing the appeal of the Cambridge Health Authority and supporting the principle that NHS has finite resources , the Court of Appeal concluded that the court was not in a position to decide on the correctness of the difficult and agonising judgments which Health Authorities had to make, as to how a limited budget was best allocated to the maximum advantage of the maximum number of patients. It is likely that such a decision could be successfully challenged within the definition of Article 2.

Similarly, many NHS Trusts have unspoken policy not to resuscitate a patient based on the patient's age. The recent report of the charity Age Concern (Daily Telegraph, 7th December 1999) that many elderly people are suffering from neglect in hospitals, in that such people are being deprived of food and water, is very alarming. It  is not  unlikely that such practices will breach both Articles 2 and 3 of the Convention. NHS Trusts are therefore advised to scrutinize their current policies and procedures for resuscitating patients carefully and ensure they do not undermine the Articles of the Convention.

There is no doubt that involuntary euthanasia is practised widely. It has always been very difficult to prove that a doctor intentionally took the life of a patient as long as he can appeal to the principles of "double effect". That is, when a doctor prescribes a dose of analgesic to reduce pain, it has always been very difficult to show that it was the analgesia which subsequently killed the patient. What some may consider alarming is that doctors are empowered by the BMA's recent guidelines to withdraw nutrition and hydration from a patient without recourse to a court. The BMA's guidelines and the principles of passive euthanasia practised by certain medical colleagues may well breach Article 2 of the Convention.

RESPECT FOR PRIVATE AND FAMILY LIFE

Article 8 reads "Everyone has the right to respect for his private and family life, his home and his correspondence". If a patient has made an advance directive and if this is not respected by the health professionals with regard to his specific wishes, the patient will be able to bring a claim for invasion of  his private life. Similarly, if a long standing resident of a nursing home is asked to move because of its closure due to lack of funds, as was in the case of R v North and East Devon Health Authority (The Times, 20 July 1999) , any such resident can seek redress for breach of the Convention with particular regard to a failure to show respect of his life in that home.

ENJOYMENT OF RIGHTS WITHOUT DISCRIMINATION

Article 14 will be a potential arena for future patient's claim. This article reinforces the ethical principle that a human being should refrain from discriminating against another human being. It states that:

" enjoyments of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status".

For example, if an Asian patient who, whilst being cared for in the main ward, is suddenly transferred to a cubicle without any explanation because he receives frequent visitors and eats home made spicy foods, will have definite grounds for a potential claim under this article. Similarly if an elderly patient is not listed to be resuscitated whilst a younger patient is, such instances could open a pandora's box of claims.

FREEDOM OF EXPRESSION

Article 10 reads:

"Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference."

This right, subject to paragraph 2 of Article 10, concerns the freedom to hold ideas, and opinions and receive information, as well as the right to express them.  Although the "Pubic Interest Disclosure Act 1998" now aims to protect employees from victimization and subsequent unfair dismissal, should an employee decides to speak out against the misdeeds of his/her employer or the incompetency of colleague, the Act places a very heavy burden of proof on the 'whistleblower'. Article 10 of the Convention perhaps offers more protection to both patients and employees of their rights of expression and health professionals have to be aware of its implications. An employee or patient should be allowed to express their views openly without the fear of sanctions. NHS Trusts policies and procedures must enshrine the principles of Article 10 to prevent the potential of future litigation. The fiasco of the recent Bristol cases could have been avoided when a consultant anaesthetist (Dr Bolsin), who had warned about the high morality rates of children following heart surgery in the Bristol Paediatric Unit, had felt obliged to give up is career in the NHS.

From the above examples, it can be seen that the UK incorporation of Human Rights from October 2000 will have tremendous implications for the way health care has been delivered to date. The Human Rights Act 1998 could bring a lot of grief to many health professionals and it is time that management devise effective protocols, as part of their risk management strategy, so that each and every health professionals is made aware of Human Rights.

Some publications:

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