The Human Rights Act 1998 was established to enable the United Kingdom to give effect to the rights and freedoms which were established under the European Convention of Human Rights. In particular, the Act ensures that human rights are not interfered with by public authorities. Patients have become more aware of their rights, which are continuously being cemented in all aspects of public services with greater weight.
There can be no disputing that a prisoner’s human rights will be curtailed. Their detention in prison deprives them of their liberty, their right to a family and private life, and arguably by the very nature of such a detention, their right not to be treated in an inhumane and degrading way. The interplay with human rights is not however so clear within the NHS setting.
The key rights which infuse the NHS setting are:-
- Right to life
- Right not to be treated in an inhumane or degrading way
- Right to freedom of thought and expression
- Right to respect for private and family life, home and correspondence
- Right to liberty and to a fair trial
- Right not to be discriminated against in the enjoyment of the other rights
In October 2008, the Department of Health, the British Institute of Human Rights and five NHS trusts worked together to produce a framework for local action designed to help NHS trusts develop and apply human rights based approaches in their local organisations, and to improve service design and delivery. The core values are outlined as fairness, respect, equality, dignity and autonomy.
All staff now work in an environment where they are fully aware of the impact human rights have on their daily practice and how this affects the decisions they make and the treatment and care they deliver. Boards too are aware of the ‘Patient First’ initiatives and that patients have become empowered. This, coupled with the Human Rights Act, has put the individual at the heart of the decision making process.
It is unlawful to act in any way which is incompatible with these rights. Any interference with a right must be necessary and proportionate, or action with a legitimate aim, e.g. for the protection of others. I now address the various settings and the effect the Human Rights Act appears to be having.
Acute hospitals deal with patients in need of immediate medical treatment but what happens when a patient gets better but then refuses to leave hospital? This poses a difficult dilemma for a Trust. The Trust could be severely criticised for discharging a patient when they have nowhere to go even if their needs are predominantly social care needs. Documentation is key to ensuring that any complaint or claim can be resisted. A full assessment of needs should be recorded. The Trust will need to liaise with the patient, any family, PCT and social services if relevant to find a suitable placement for the patient as soon as possible. There are restrictions on a persons’ human rights in this context, and a patient would not be able to argue, for example, that they expressed the view that they wanted to remain in hospital and therefore the hospital must let them reside there. Courts are also alert to the fact that hospitals do not have infinite resources. However, in the short term, whilst a suitable placement is sought, a huge resource may be required to ensure that the patient’s fundamental rights are not infringed.
PCTs and Care in Nursing Homes
We have an ever ageing population, and there has been a move in general to provide patients with care in the community where possible. This is in line with patients’ human rights to respect for their home and family life. In addition, it does not infringe their liberty. However, whilst this is usually desirable, this is often not practical or achievable. Many older patients may need 24 hour registered nursing care, and this can be much better provided in a residential nursing home setting. The law changed to ensure that any patient that lacked capacity and was deprived of their liberty had safeguards in place to authorise that deprivation where necessary. This will hopefully avoid many claims that there has been a breach of human rights. However, it is probably too soon to properly assess the result of these safeguards in respect of any potential claim. What is clear is that where there is any possibility that a person may ultimately be deprived of their liberty, authorisation should be sought either from the requisite PCT or Local Authority. At the moment it appears that organisations are erring on the side of caution and seeking authorisation where it is likely to be necessary.
Mental Health Services
Mental health professionals are faced with one of the most difficult challenges. They will be faced with patients who may be acutely unwell and as such are unable to understand their rights. This may only be temporary, although other patients may lack capacity to make decisions in relation to their rights on a permanent basis. Extreme care must be taken by staff to ensure that patients know their rights, and that their rights are only curtailed so far as is necessary and proportionate. Patients who have frequent encounters with the mental health services are often very familiar with their rights but one should always remind them. Those detained under the Mental Health Act have their liberty curtailed and it is essential that regard is made to an individual’s ‘rights’ and entitlement under the Mental Health Act to ensure that human rights are not subsequently infringed.
Inquests are an area where the Human Rights Act has had a profound effect. Where an individual has had their human rights curtailed, Article 2 will be engaged, which will enable the Coroner to explore not only ‘by what means’ the deceased came by his death, but also, ‘by what means and in what circumstances’. This can lead to families trying to explore issues at the inquest that have no connection whatsoever to the cause of death. This has led to inquests becoming longer and more complicated. In many circumstances, the Coroner is obtaining expert reports to assist him with the wider issues. This leads to delays, which become even longer when a jury is empanelled.
On the few occasions where a Coroner attempts to restrict the ambit of an inquest to purely dealing with issues relating directly to the cause of death, he can often come under enormous pressure from family members. In some circumstances, this may lead to the Coroner being judicially reviewed, where the family claim he has failed to explore all of the relevant issues in accordance with case law, especially where a patient is detained, or where a patient dies at hospital and there are potential issues in relation to the systems in place.
It is clear that under current legislation and case law, families will continue to have a great deal of leeway at inquests, which will put added pressure on Trust witnesses. However, as part of a caring profession, witnesses will no doubt want to assist the family with the grieving process and provide answers where possible. As a public authority, healthcare staff will need to explain/justify their actions even where they are reasonable and appropriate. It must also be remembered that it still remains a factual inquiry and as witnesses from the Trust you are the professionals, the people that were there and know exactly what happened, and you should feel confident in your own judgment.
Has the Human Rights Act gone too far? It is certainly very prevalent in today’s society and most individuals are aware that they have basic rights as human beings that should not be breached. This is particularly clear in the healthcare arena. This is not necessarily negative as there have arguably been much needed changes to enhance patient experience and protect staff from potential claims. However, it does potentially add an additional burden to an already difficult job. There is clearly a balance to be struck here. It would be very sad if the threat of patients’ making complaints and bringing claims under the Human Rights Act, results in staff feeling unable to do their job properly, no longer enjoying the nature of a profession they once loved and a reduction in staff, in an NHS which arguably already lacks the resources it so rightfully deserves. Support from senior members at the Trust to staff members who are the subject of a complaint, involved in an inquest or in a claim, is invaluable. In an ever-changing world, change in the NHS continues to be at the forefront of many people’s agenda. Whether the Conservative party or Labour party are elected at the next general election, the NHS and its’ staff will continue to be accountable for their actions and strive towards delivering an excellent standard of healthcare.