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The Human Rights Act 1998 and Nursing

VIEWS: 14 PAGES: 21

									Human Rights and health care –
    practical application
             Chris Cox
      Director of Legal Services
      Royal College of Nursing
            Human Rights - overview

    ‘Research has shown that the application of human rights
    principles, for example dignity and respect can help to
    improve a patient’s experience and quality of care and will
    inevitably lead to improved outcomes’ Audit Commission

       Accountability
       Empowerment
       Participation
           Human Rights - overview
   The Convention as a ‘living instrument’
   Strasbourg jurisprudence
   Absolute and qualified rights
   Public authorities and those undertaking public
    activities
   Positive and negative obligations
   Sections 3, 6, 7 and 8
   Proportionality
                  Protected rights

   Article 2 - right to life
   Article 3 - freedom from torture or inhuman or
    degrading treatment
   Article 5 - right to liberty and security of person
   Article 6 - right to a fair trial
   Article 8 - right to respect for private and family
    life
   Article 9 - freedom of thought, conscience and
    religion
                  Protected rights

   Article 10 - freedom of expression
   Article 11 - right of association
   Article 12 - right to found a family
   Article 14 - freedom from discrimination
   Article 1 of First Protocol - protection of property
            Unlawful discrimination

   Article 14
   Not free-standing
   ‘Other status’
   Defining ‘disability’
   Meaning of discrimination - identifying
    comparator
   ‘Objective and reasonable justification’
   Indirect discrimination
                     Illustrations
   Life saving treatment (article 2)
   Safeguarding the vulnerable (article 3)
   Detention because of mental ill-health (article 5)
   Professional registration (article 6)
   Covert filming (article 8)
   Artificial nutrition or hydration (article 8)
   Religious beliefs in workplace (article 9)
   IVF treatment (article 12)
   Access to treatment (article 14)
             HRA management tool
   DH human rights based approach (HRBA) putting
    human rights principles and standards at the heart
    of policy and planning (2007)
   Individual at heart of system
   Best standard of service that resources will permit
   Perspectives of others – balancing rights and
    interests
   Individual and community
   Better decisions, objectivity, defence
                  HRA checklist
   Step one: what is decision, policy or process being
    developed? Why? Purpose?
   Step two: identification of rights (see articles) –
    what, who, how?
   Step three: protection of rights or positive
    obligations – what, action?
   Step four: balancing rights (clear legal basis;
    legitimate aim; necessary; proportionate – least
    restrictive; non-discriminatory)
   Step five: organisation process – consultation;
    agreement; information; training
Illustration – restricting access to a drug
                 treatment
   Decision? Duty on PCT to commission medical
    services ‘as it considers necessary to meet the
    healthcare needs of the local population as a
    whole, within allocated resources’.
   What rights? Whose? Ban treatment outright or
    restrict to exceptional circumstances? What
    circumstances?
   Positive duty?
   Balancing rights?
   Organisational action?
           Clinical negligence
 In context of healthcare quality, few legally
  enforceable patient rights
 Common law duty of care: Bolam (1957) and
  Bolitho (1997) – professional standard/limits of
  medical discretion
 Standards of ‘adequate and appropriate’ care (X v
  UK (1978))
 Chester v Afshar (2004) – ‘vindication of patient’s
  rights’ the overriding consideration leading to
  relaxation in traditional requirements
               Accessing treatment
   Rationing
   NHS Act 2006, NHS Act 1977 and Regulations
   Rogers v Swindon NHS PCT (2006) – ‘rigorous
    scrutiny’ by courts where life and death situations
    (general policy of refusal save where exceptional
    circumstances permitted, so long as able to
    envisage what would be exceptional)
   R v Cambridgeshire Health Authority, ex p B
    (1995)
   Articles 2 & 3
   Does general policy have rational basis? Has it
    been applied appropriately in the particular case?
     Degrading treatment and article 3
 High threshold - minimum level of severity
 Duration, physical and mental effects, sex, age,
  victims health
 Positive action to prevent abuses
 Compulsory medical treatment and ‘therapeutic
  necessity’
           Competency and consent
   Gillick (1985)
   Articles 5, 8 and 14
   Re F (Mental Patient)(Sterilisation) 1990
   Doctrine of ‘necessity’ and ‘best interests’
   R v Bournewood Community Health Trust ex p L
    (1998)
   Articles 3 and 8
   Mental Capacity Act
      Health records and confidentiality

   Article 8

   Z v Finland (1998)

   Data Protection Act 1998
      Right to marry and found a family
   Article 12

   Disabled people and parenting

   Fertility treatment and Article 14

   Sterilisation
         Private life and Article 8
   ‘Right to establish and develop relationships with
    other human beings’
   Physical and moral integrity, e.g. consent to
    medical treatment
   Private life, including physical privacy
   Accessing information relating to private life
   Right to a home and independent living
   ‘Family life’
                     Restraint
   Form
   Abuse
   No specific legislation
   General criminal and civil law
   Statutes: Mental Health Act 1983 (as amended by
    Mental Health Act 2007), Human Rights Act 1998
    Restraint of children and young people
 RCN ‘Restraining, holding still and containing
  children and young people: guide for good
  practice’ (2003)
 BMA ‘Consent, Rights and Choices in Health
  Care for Children and Young People’ (2001)
 United Nations Convention on the Rights of the
  Child 1989
 Parental rights and responsibilities
                   HRA 98 (1)
   Article 5
   Meaning of detention: Ashingdane v UK (1985)
   Principles: Winterwerp v The Netherlands
    (1979/80)
   objective medical expertise reliably showing
    person to be of ‘unsound mind’
   disorder of a kind and degree warranting
    compulsory confinement
                     HRA 98 (2)
   Continuing disorder
   In accordance with domestic law
   Procedural safeguards (Article 5(4))
   Article 3 (Herczegfalvy v Austria (1993)
   Duration of treatment
   Physical or mental effects
   Age, sex, vulnerability and state of health
   Article 8

								
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