Healthcare Law: Impact of the Human Rights Act 1998

Austen Garwood-Gowers, John Tingle, Tom Lewis

• Publisher: Routledge-Cavendish
• Year: 2013
• ISBN:
  9781135338749
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

With many issues still to be resolved, the Human Rights Act has brought considerable uncertainty with respect to healthcare law. Written as a critical collection of essays, this invaluable book provides a careful examination and analysis of the issues and how they might be resolved.

The book fully explores the relevance and potential impact of the European Convention on Human Rights and Biomedicine, both genetically and in specific areas such as medical research and biotechnology.

CHAPTER 1
THE HUMAN RIGHTS ACT 1998: A POTENT TOOL FOR CHANGING HEALTHCARE LAW AND PRACTICE

Austen Garwood-Gowers and John Tingle

THE PASSING OF THE HUMAN RIGHTS ACT 1998: A MONUMENTAL SHIFT IN THE UK CONSTITUTION?

Traditionally, the UK has protected rights in a residual fashion; Parliament would legislate and citizens—or rather subjects—would retain the rights to do whatever Parliament had not prohibited. Under the US Constitution the US courts have been empowered to strike out legislative provisions contrary to the fundamental rights protected under the Constitution. However, in the English system Parliament is omnicompetent; its supremacy or sovereignty can only be challenged in the event of a transfer of power following internal revolution or external invasion. Coke CJ in Dr Bonham’s Case, stated that: ‘When an Act of Parliament is against common right or reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void.’ ¹ However, no statutory provision has ever been overturned under English law and Coke’s approach does not seem to be good law. As Lord Reid put it, in British Railways Board v Pickin [1974] AC 765 HL, p 782:

The idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our constitution… In early times many learned lawyers seem to have believed that an Act of Parliament could be disregarded in so far as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of Parliament was fully demonstrated by the Revolution of 1688 any such idea has become obsolete.

The most the courts of England and Wales can do is resolve any uncertainties as to the meaning of legislative provisions in favour of the rights of the citizen² and to review administrative action taken by national or local or other government authorities.³ On the other hand, when the Treaty of Union was signed between England and Scotland in 1707, the Scottish Court reserved the right to treat an Act of Parliament as void for breaching a fundamental term of the Treaty. Admittedly, in McCormick v Lord Advocate 1953 SC 39, it was not foreseen that this was likely ever to happen in practice. An advantage claimed for giving less power to the judges under the English position is one of democratic accountability; namely, that judges who are not chosen by the populus cannot overturn the decisions of a Parliament whose members, in the case of the House of Commons, are chosen by the populace.

Over the last 50 years, Parliament has retained its ultimate sovereignty but lost some control over elements of day to day decision making. The biggest single change in this respect has been membership of the European Union (EU).⁴ On the human rights front, the UK has, since 1951, bound itself to accept (subject to ‘derogations’ made under the Convention in specific cases)⁵ the decisions of the European Court of Human Rights as a ‘final appeal court’ on matters concerning the rights protected under Articles of the European Convention on Human Rights (ECHR) and a number of its protocols, to which it is a signatory. A person in the UK can apply to have his or her case heard by the European Court of Human Rights if (s)he has exhausted the possibilities for getting it overturned within the domestic system of law (that is, the courts and, in criminal cases, the Home Secretary).

Campaigns for a domestic Bill of Rights have been long standing. However, one of the concerns about implementing such a Bill has been the impact on sovereignty of the legislature. In the US system, sovereignty is compromised by the ability of judges to have the ultimate say, using the US Constitution to strike down legislative provisions. The Canadian and Hong Kong solutions avoid this by using a limited form of judicial entrenchment where the courts can override legislative provisions inconsistent with the legitimate protection of rights, subject to the legislature having the ultimate say.⁶ The Human Rights Act 1998 (HRA), which brings the ECHR rights more or less wholesale into the fabric of English law, adopts the New Zealand stance of being an interpretative tool only. Under s 3 of the HRA, ‘primary and subordinate legislation’ must be read and given effect in a way which is compatible with the Convention rights. Provisions that cannot be interpreted in a manner consistent with those rights can be declared incompatible by the courts (s 4), but it is left up to Parliament as to whether it does anything about this incompatibility and whether it legislates in future in a manner consistent with rights. Only common law has to come into line with the Convention rights.

Despite this limitation, the Act is likely to go down in history as a monumental shift in the UK Constitution, like the Magna Carta 1215 and the Bill of Rights 1688,⁷ but more potent in terms of advancing the legal protection of human rights.

The courts and tribunals will interpret law in a manner more consistent with human rights

The HRA 1998 will result in courts and tribunals interpreting law in a manner more consistent with human rights for a number of reasons:

1. (a) Its existence will put pressure on Parliament to change legislative provisions so as to be consistent with the Convention rights.
2. (b) The danger that some of the Articles might be interpreted in a flawed, nonsensical or overly restrictive fashion has been reduced by the presence of s 2 of the Act. Under s 2, a domestic court or tribunal in making decisions about whether one or more of the Articles have been violated has to take into account, in so far as it thinks it relevant to the case at hand, the so called ‘Strasbourg jurisprudence’ which includes: judgments, decisions, declarations and advisory opinions of the European Court of Human Rights (the Court); opinions of the Commission given in a report adopted under Art 31 of the Convention; decisions of the Commission in connection with Art 26 or 27(2) of the Convention; or decision of the Committee of Ministers taken under Art 46 of the Convention. As will be seen in the course of this book, the ‘Strasbourg jurisprudence’ includes a number of cases and decisions which are about healthcare law or are of great relevance to it.
3. (c) Under s 6 of the Act it is unlawful for a public authority (or a private/ partly private body exercising a public function) to act in a way which is incompatible with the rights that have been brought into domestic law under the Act. Courts and tribunals are included within the definition of a public authority. Consequently, when cases arise, they have a duty to ensure that existing common law is ‘brought into line’ with Convention rights as protected under the Act. In Chapter 2, John Hodgson lays out several examples of how common law may be affected in practice. Clearly, some effects are going to be felt in healthcare law and he outlines a few examples. A further example is provided in Chapter 14 where Austen Garwood-Gowers suggests that the common law approach established in Re W (A Minor) (Medical Treatment) [1992] 3 WLR 758 and Re R (A Minor) (Wardship: Consent to Treatment) [1991] 4 All ER 177 where competent minors can be forced to undergo medical intervention, where consent has been obtained ‘on their behalf may be inconsistent with the right not to be discriminated against (Art 14) in conjunction with the right to privacy (Art 8) or indeed the right to liberty and security (Art 5). Section 6’s definition of a public authority would clearly include both NHS-run medical organisations (for example, Hospitals) and non-NHS-run institutions where medical services paid for by the NHS are being provided (for example, NHS patients being catered to in a doctor’s surgery). It will probably also include private medicine itself.⁸

The Act will result in Parliament feeling more constrained to exercise its sovereignty in a manner consistent with human rights

Whilst Parliament will, in theory, be able to continue doing what it wants in relation to potential violation of human rights, in practice, violations are likely to decrease. Section 19 of the Act, requiring the minister in charge of a Bill to make a statement about its compatibility with the Convention rights, came into force on 24 November 1988. By the Scotland Act 1998, the main equivalent provisions of the HRA effectively came into force in Scotland in May 1999. This is an important development. In the past, important civil liberties, such as the right to silence, have often been ‘damaged’ without the media and public paying much attention. Now Parliamentary actions in human rights terms are more firmly in the public eye. Producing legislation in a manner inconsistent with the Convention rights could prove to be a source of significant political embarrassment. Equally, so could refusing to change a legislative provision following a declaration by the courts of its incompatibility with the HRA 1998. Our system of rights remains in the strict sense residual. However, it has a ‘positive rights protection element’ which for day to day purposes of the operation of the constitution may prove more important. That is unless, or perhaps until, a future (almost certainly Conservative) government should decide to change it.

Removing the denial of justice stemming from delays

The principal limitations with the Court is that it can take years to get one’s case heard since one must first exhaust domestic possibilities for appeal. For example, in Golder v United Kingdom (1975) 1 EHRR 524 the applicant had been released from prison by the time he won his case in the European Court for a violation of his right to privacy in the failure of the prison authorities to allow him to contact a solicitor for the purpose of initiating a libel action. He succeeded in establishing an important legal principle for prisoners in future but achieved nothing for his own situation.

The HRA 1998 includes, with one amendment,⁹ a wholesale adoption of the Convention Articles.¹⁰ It provides the opportunity for claims of violation of these Articles to be heard directly in the domestic courts and tribunals and, as such, draws to a close an era of this ‘justice delayed is justice denied’ situation.¹¹

Facilitating an increase in cases brought before the courts

The implementation of the HRA 1998 will inevitably mean that some claims of breaches of human rights that would not have been brought before the European Court because of the delays (and possibly the expense involved in exhausting domestic remedies) will see the light of day in the domestic courts.

Table 1: the Convention (and Protocol) rights protected under the HRA 1998

• Article 2—the right to life
• Article 3—prohibition of torture
• Article 4—prohibition of slavery and forced labour
• Article 5—right to liberty and security
• Article 6—right to a fair trial
• Article 7—no punishment without law (that is, without breaking the criminal law)
• Article 8—right to respect for private and family life
• Article 9—freedom of thought, conscience and religion
• Article 10—freedom of expression
• Article 11—freedom of assembly and association
• Article 12—right to marry and found a family
• Article 14—prohibition of discrimination
• Article 1 of First Protocol—protection of property
• Article 2 of First Protocol—right to education
• Article 3 of First Protocol—right to free elections
• Article 1 of Sixth Protocol—no death penalty (exceptions in time of war/imminent threat of war are laid down in Art 2, Sixth Protocol which is also in Sched 1. Articles 1 and 2 of the Sixth Protocol to be read in conjunction with Arts 16 and 28 of the Convention).

Victims can gain compensation

To bring proceedings you must be (or would be) a victim of the unlawful act (s 7). Relief or remedy can be granted within the powers of the tribunal or court and in civil proceedings it is possible for damages to be awarded where necessary for just satisfaction (s 8).

The Act will stimulate the creation of a consciousness about rights

In signing the Commencement Order for the Act, the Home Secretary, Jack Straw stated that:

The Government’s objective is to promote a culture of rights and responsibilities throughout our society.¹²

Perhaps the most important thing that the Act will help bring about is an increased awareness about rights. Rights education is becoming a more important element within schools and the general knowledge of society at large is improving. This will have knock-on effects in terms of people being more aware of the possibilities of taking legal action to defend their rights. It may also result in public bodies and parliament, having less of a tendency to act contrary to rights through being more conscious of their nature and ambit. As the Lord Chancellor, Lord Irvine, commented:

The objective of the Human Rights Act is to promote a culture of respect for human rights and responsibilities which over time will permeate the whole of our institutions and society.¹³

THE IMPACT OF THE ACT ON HEALTHCARE LAW

An increasing rights consciousness in healthcare

The Nation’s health is a major priority on the political agenda of the leading political parties. It is also a central concern for most people—hardly surprising when one considers that there is nothing more basic and fundamental than our own health and the health of our families. Recent events, such as Shipman, the Bristol Heart Surgery Scandal and Alder Hay, have rocked public confidence in the NHS. These scandals have also coincided with the implementation of the HRA 1998 and have combined together to reinforce a patient’s rights culture in UK society. It is a well known fact that litigation and complaints in healthcare have risen over the last 10 years. The National Audit Office¹⁴ stated that:

…reported liability for clinical negligence continues to increase within the NHS, with total potential liabilities of £2.4 billion disclosed in the accounts at 31 March 1999, an increase of £0.6 billion.

Every year the Health Service Ombudsman reports rises in complaints to his office.¹⁵ This new public appetite for complaining and litigiousness has become a feature of the healthcare environment for all health carers, and they all seem aware of the fact. The public is less tolerant, more demanding with greater expectations.

Despite the above trends of increasing health litigation and complaints, the Government’s view is that the general public needs more formal methods of protection and rights enforcement. Patients are seen as the weaker party in the care equation. The Health and Social Care Act 2001 contains a number of provisions designed to enforce patients’ rights, such as the establishment of Patients’ Forums, Annual Reports to Patients’ Forums and so on. Perhaps these measures are seen as a way of giving some patients a means of satisfactorily resolving their complaints without recourse to legal action.

Health Secretary, Alan Milburn, in a recent address to patient groups at the King’s Fund, called for a new bond of trust between patients and the NHS.¹⁶ He expressed a widely held sentiment that the NHS is too much a 1940s system operating in a 21st century world:

It is too much a system that caters for its own needs—its own convenience— and not enough for the needs and convenience of those who use it.

He called for a patient revolution in the NHS:...