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Human Rights and Medical Treatment

By: Louise Smith, barrister - Updated: 7 Aug 2017 | comments*Discuss
 
Medical Treatment Human Rights

Many aspects of medical treatment may raise human rights issues. Under UK human rights law NHS medical establishments and local health authorities are 'public authorities'. This means that they must comply with the duties contained in the Human Rights Act. Therefore, a breach of an individual's human rights by the NHS or a local health authority could give rise to a legal claim under the Human Rights Act.

Human Rights with Relevance to Medical Treatment

Many of the rights contained in the Human Rights Act 1998 could apply to medical treatment. In particular:
  • Article 2 – the right to life;
  • Article 3 – the right not to be subjected to degrading treatment;
  • Article 5 – the right to liberty. This Article specifically provides that an individual may lawfully be deprived of liberty in order to prevent the spread of infectious diseases or if they are “of unsound mind”;
  • Article 8 – the right to respect for an individual's private life.

Under Article 14 public authorities must ensure that there is no discrimination in the way that the rights in the Act are applied.

Human Rights and Access to Medication or Treatment

“Postcode lottery“ and “postcode prescribing“ are terms which have been applied to the availability of certain treatments and medications on the NHS. For a treatment to be made widely available on the NHS it must be approved by the National Institute for Health and Clinical Excellence (NICE) – In England and Wales – or the Scottish Medicines Consortium – in Scotland. If a treatment is not approved it will only be available through the NHS if a patient's local health authority agrees to provide special funding for it.

Applications for this funding are made by a patient's doctor. The criteria applied to applications, and the amount of funding available, may vary between different health authorities. Therefore, a treatment could be provided on the NHS for some patients but not for others. This may raise questions about whether there has been discrimination relating to access to the treatment based on where a patient lives.

Human rights arguments may also be raised in relation to drugs which are deemed to have little positive impact or which are considered to be disproportionately expensive. For example, an expensive drug may be shown to prolong life in terminally ill patients – but only for a matter of weeks. On this basis it may not be approved for availability on the NHS. Patients may argue that, by withholding the treatment, the local health authority has breached their right to life.

Human Rights and Consent to Medical Treatment

Medical professionals have a duty to provide their patients with information about any medical treatment they propose. This enables a patient to give informed consent to the treatment. Generally speaking, a doctor who carries out medical treatment on a patient without that patient's consent is likely to be committing a criminal assault. There are some exceptions to this rule especially in cases where a patient is unable to give valid consent to important treatment. In these circumstances the treatment may still be given if it is in the patient's best interests.

This is a complex area of medicine / law and each case is likely to depend on its own facts. Different rules may also apply to patients who come under the auspices of the Mental Health Act 1983.

Children and Consent to Medical Treatment

In principal children under the age of 18 are not able to give valid consent to medical treatment. However, special provisions apply to children aged 16 or 17 who may be able to give valid consent in respect of some types of treatment. Indeed, the courts have held that some younger children may also be able to give valid consent to certain types of treatment. Consent from younger children will depend on the particular child and the treatment in question. This topic also raises issues regarding confidentiality and a child's right to privacy and to receive treatment without their parents' knowledge.

Where a minor cannot give valid consent, an adult with parental responsibility for the child will generally have to give consent for any treatment to be lawful. There may be cases where the adult does not consent to the treatment and relies on their right to make decisions about the child's welfare.

If medical professionals believe that a particular treatment is in a child's best interests they may apply for a court order so that the treatment can go ahead. The court may weigh the parent's right to make decisions about their child against the benefit to be derived from the treatment. A court may also be required to make this decision if people with parental responsibility for a child disagree about whether or not they should receive a particular treatment.

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[Add a Comment]
Aj - Your Question:
Can my doctor refuse me strong medication due to my "young" age if I'm in need of it ?

Our Response:
Yes a doctor usually knows best what medical treatments to prescribe.
AboutHumanRights - 8-Aug-17 @ 2:38 PM
Can my doctor refuse me strong medication due to my "young" age if I'm in need of it ?
Aj - 7-Aug-17 @ 7:07 AM
Dolphin - Your Question:
I went on holiday for two weeks and my usual doctor prescribed my medication for 2 weeks when I came back I ordered my prescription which I have weekly and another doctor has refused my medication because he wants me to collect it daily from the pharmacy can my usual doctor override his decision

Our Response:
This will depend on the policy of your local doctor's practice or NHS primary care trust, so it would be better to contact them and ask.
AboutHumanRights - 2-Aug-17 @ 12:15 PM
I went on holiday for two weeks and my usual doctor prescribed my medication for 2 weeks when I came back I ordered my prescription which I have weekly and another doctor has refused my medication because he wants me to collect it daily from the pharmacy can my usual doctor override his decision
Dolphin - 30-Jul-17 @ 2:14 PM
Type1 - Your Question:
Hi I recently missed an apointment mith my diabetes nurse im type 1 and was busy at work and lost track of time and realised when I finished work ive rang the surgery a few times to book an apointment only to find im getting stuck on hold one day I was on hold for 40 mins during my lunch break so after trying a few days I gave up after 2 months I went to do my perscription online to find my insulin had been removed to which I was confused about as I need that to live when I returned home from work I had recieved a letter from my doctor stating I had to attend an apointment to get it put back on I attended only to be told I need a blood test done before they can put it back on again which ive had and once I phone up and speak with the nurse to have it put back on I feel ive been mistreated and im getting worried as im getting low on medication and if I run out I wont be able to eat and will become seriously unwell and end up in hospital or worse what can I do? I work hard and pay my taxes and shouldnt be denied medicine I need

Our Response:
Make a formal complaint about the difficulties in getting hold of the surgery at times that are convenient to you. If your medicine is being withheld speak to your local NHS Primary Care Trust for further help.
AboutHumanRights - 8-May-17 @ 11:46 AM
Hi i recently missed an apointment mith my diabetes nurse im type 1 and was busy at work and lost track of time and realised when i finished work ive rang the surgery a few times to book an apointment only to find im getting stuck on hold one day i was on hold for 40 mins during my lunch break so after trying a few days i gave up after 2 months i went to do my perscription online to find my insulin had been removed to which i was confused about as i need that to live when i returned home from work i had recieved a letter from my doctor stating i had to attend an apointment to get it put back on i attended only to be told i need a blood test done before they can put it back on again which ive had and once i phone up and speak with the nurse to have it put back on i feel ive been mistreated and im getting worried as im getting low on medication and if i run out i wont be able to eat and will become seriously unwell and end up in hospital or worse what can i do? I work hard and pay my taxes and shouldnt be denied medicine i need
Type1 - 6-May-17 @ 3:33 PM
Can somone please tell me can i bring my husband back home from hospital today
Ruk - 17-Feb-17 @ 10:25 AM
Hi my husband is in hospital under section 3 i have write a letter to the doctors to discharge him but they reject it i am so stressed out they are saying he is dangrouse to himself these are lies he is absoultey fine they are giving him wtong medication i have phone them not to give him he has really bad side effect with them i have phone so many time to speak with the doctors but they are not answering me back is there any way or anyone who can suggest me that can i bring my husband back home i dont want him to be or be treat in hospital can i do this i have 5 childrens i really dont know what to do is this possible if i just go to the hospital todey and bring my husband home i dont want him to stay in hospital
Ruk - 17-Feb-17 @ 10:13 AM
My mum has been prescribed 200mg of morphine sulphate tablets per day for arthritic pain. This is fairly mild she can still do all her housework and get out and about. I feel that since taking this she is not herself. She gets co fused, sweats profusely, cannot follow or hold much conversation and is falling. She has just had surgery because she fell and broke her wrist very badly. She visits GP alone and won't let us go with her. She is 78 years old. How do we address this? She was previously on fentanyl patches but not at this strength and these tablets have not been built up slowly to this dose ,?
Smudge - 28-Dec-16 @ 8:25 AM
RimwulfRandall - Your Question:
I am at a group facility for 4 hours the times a week for mandatory life saving treatment. Around 20 other patients and we learn to treat either each other respect and with basic understand that also includes proper language. But there is this one person who does curse when she doesn't get her way, she is in her right state of mind, and I understand her frustration but her cussing is disrespectful and is not harmless gets me "triggered". I want it to stop ahs I personally believe it's a danger to my state of mind. I either want her to stop or have her removed, she can yell until she's blue in the face but I saw the line at abusive language. What can I do?

Our Response:
You could try making a formal complaint to the organiser of the group facility - perhaps consider putting it in writing.
AboutHumanRights - 16-Dec-16 @ 11:48 AM
I am at a group facility for 4 hours the times a week for mandatory life saving treatment. Around 20 other patients and we learn to treat either each other respect and with basic understand that also includes proper language. But there is this one person who does curse when she doesn't get her way, she is in her right state of mind, and I understand her frustration but her cussing is disrespectful and is not harmless gets me "triggered". I want it to stop ahs I personally believe it's a danger to my state of mind. I either want her to stop or have her removed, she can yell until she's blue in the face but I saw the line at abusive language. What can I do?
RimwulfRandall - 15-Dec-16 @ 2:09 PM
My brother is held on a section 3 he's had his leave taken away because he refusing to take hisNew medication, he's said it gives him headaches. This has been going on for the past 4 months. Can they do this? or should they be offering another treatment? Yes been out side once in 4 months. Yes never hurt anyone however gets agitated because he feels like a prisoner. He has never been in trouble with the police.
Mary - 7-Dec-16 @ 2:02 PM
duck - Your Question:
My mom was admitted to hospital and was put on life support well when she came off of it the hospital allowed her to sign out telling us she was unstable we begged and pleaded with administration to send someone to speak with her so they can see she is not in her right mind and unable to make decisions qnd they refused when we got to hopsital my mom told me she got raped by 4 people while she was on there I clearly knew it wasnt true and knew she was out of it please tell me how I can go about filing a lawsuit for the way they treated her she ended up coded that night when we got her home like 3 hours after leaving hospital we got her to memphis and she passed away few days later please help

Our Response:
You will have to seek profession legal advice for this situation.
AboutHumanRights - 5-Dec-16 @ 12:51 PM
My mom was admitted to hospital and was put on life support well when she came off of it the hospital allowed her to sign out telling us she was unstable we begged and pleaded with administration to send someone to speak with her so they can see she is not in her right mind and unable to make decisions qnd they refused when we got to hopsital my mom told me she got raped by 4 people while she was on there i clearly knew it wasnt true and knew she was out of it please tell me how i can go about filing a lawsuit for the way they treated her she ended up coded that night when we got her home like 3 hours after leaving hospital we got her to memphis and she passed away few days later please help
duck - 2-Dec-16 @ 8:26 AM
Wanting a little advice. My son is severly autistic with severe learning difficulties, behavioural problems, sensory processing disorder and adhd. When I was 3 1/2 mths pregnant I had dental problems and they xrayed my mouth. They ressured me this procedure was fine, but recently I read somewhere that having this procedure could have implications on an unborn child. Could you reassure me that what has happened to my son is just life and not down to the procedure I had.
chucky - 17-Oct-16 @ 6:29 PM
Hi I would like some advise please... I was diagnosed with herpes type 2 about 2 weeks ago. I am being told different things by different Dr. I feel my 2nd out break coming and was advised to go and get some anti virus tablets to prevent a bad out break.As apparently if you catch it early it avoids break out.I've been to my GP today and she has refused me my treatment and said she will refer me and that i dont need it. I have to live with what i have . Well by the time the referral happens I probably will be on my 3rd outbreak so I feel a bit helpless now. I really feel as if this is breaking my human rights. Maybe I'm wrong. But if they do help with the pain and itching why would I be refused it ?
Somehelpplease - 3-Oct-16 @ 7:47 PM
cellochick - Your Question:
I have pernicious anemia. I get b12 injections every 10 weeks and have done for over 13 years. Today I have been told by the nurse that my surgery are forcing everyone to change to 12 weekly injections. Can they do this? O will be fighting this any advice would be very much appreciated.

Our Response:
If it's not detrimental to your health, then I guess it can. You'd be better checking with your local NHS trust.
AboutHumanRights - 9-Sep-16 @ 2:05 PM
I have pernicious anemia. I get b12 injections every 10 weeks and have done for over 13 years. Today I have been told by the nurse that my surgery are forcing everyone to change to 12 weekly injections. Can they do this? O will be fighting this any advice would be very much appreciated.
cellochick - 8-Sep-16 @ 6:22 PM
I have a complex situation that I need legal advice about. I'm going through a divorce and separated last year year when my ex found me talking to a guy online. He freaked out and because I had previous problens with depression due to mental abuse, where I commitedmyslefto the psych ward, he used this as leverage to petition me against my will back into the psych ward. While I was there, they put me on muktiple meds that made me severely mentally unstable. I spent the next 4 months in and out of hospitals because I was hallucinating, and since I was alone, I didn't know how bad I was but I went completely psychotic and was literally overdosed by the meds daily and almost died several times, was in and out of the hospital several times, meanwhile, he was slandering me to all my family and friends telling them I was doing drugs narcotics and ODing myself. He started a "smear campaign" and now that I'm off all the crazy meds and back to normal, I'm still dealing with the stigma of being crazy. I've been bullied and harrassed by his friends, disowned by my family and friends and local police don't take the abuse I suffer from him seriously becuase they think I'm just crazy too. Now that I'm going through the divorce, he keeps using it as a means to try to get my kids taken away, his lawyer keeps accusing me of being mentally unstable and even my own lawyer has stopped representing me after I told him what happened. While I was in the hospital, he stopped paying the bills, throwing my credit into bankruptcy status and he took the kids at the time and told CPS that I'm insane. Then he falsely claimed that the kids weren't allowed at their own home, and that I had supervised visitations. He only let me bring the kids over to visit me a couple times a week while he sat there and supervised, even though there was no open case at all. He made it all up, and now my reputation is trashed, my kids have suffered emotional trauma and he is abusive during visitations. He turned completely evil after he found the messages and violates my rights left and right. I'm not sure if I want to press charges or if I even have a case, but the snowball effect continues to grow from his initial lies about my mental stability. A lot of laws were broken, but he acts as though he did nothing wrong and treats me like crap. Any advice?
anita79 - 23-Jul-16 @ 12:41 AM
Hi I was just wondering if someone could advise me. My wife has bee diagnosed with fibromyalgia and hyper flexible. Which she is now registered disabled however her work have given her two sickness warnings and she due to being off with this medical condition. Recently she has been in hospital as she got kidney stones and was in hospital for a few days her work have know given her a third and final warning. I was wondering if this unfair treatment and what are her human rights in this as from my point of view by giving her a 1st 2nd and know 3rd warning they have stated that she is not allowed to get medical treatment.??
B1 - 10-Jun-16 @ 1:31 PM
Im desperate for help im total devestated and cant bear to see the doctor its soul destroying to be treat like im a liar and not helped at all heres a bit of what im going through. Im having trouble coping on 10.12.2014 i lost the plot. I cant realy remember why the police were at my house,but i was going to fight them i wasnt bothered what happened to me if id of had a gun id of tried to use it. I was off my head screaming i was getting set up when i was held assesed and sectioned for 28days,but i needed help id never want to hurt people. I had a couple of days were i didnt want to talk to anyone in a very serious ward in the mental health hospital rosebury park used to be saint lukerg hospital. I signed away my right to appeal as advised because i remembered my thoughts and swearing and realy vile mental behaviorfter 2 days i said sorry for how i was and had meals and came out my room i liked being there i felt like it was a holiday i was told id get help with housing because i was realy close to someone who sold heroin and had teenage lads in the house 20 of them or more constantly and they wer on any drugs they could get the violence tortured me there was blood curdlin screads from them fighting and my oldest sons that age the police would want to go through my house and out the back to catch drug dealers burglers the lot. People wif meat cleavers thought my house was tthat house i thought my sons not going to be arond it he wasnt safe physicaly or mentally so he livtes with hes dads mam and dad. After ten days at the hospitaka i was told i had a 1 nyt leave,i had been told i wudnt come back so my bedrooms and other stuff was all cleared out . I had to be back by a certin time the next day. I got ther with my stuff and i was told i wasnt goin back in and to go home,since then iv rang the crisis team,the ward i was in,and the doctors and been to my doctor begging him for help,but ive had nothing i dont know what it was put down as ive had no aftercare iv begged for my doctor to please refare me to a psyciatrist or something i realy needed help i had a mushed up brain iv relearne spellin g and maths but i just remember anything im on jobseekers alowance but im getting tortured of the housing benefit and im so in need of help i dont owe them the money but theqg taking it im gettin £70 a fortnite and fined off the tv licence,water,the housing and more im goin to get jaii if i dont sort things out i cant do it im now in agony i have severe heartburn at least 3 weeks out of 4,i feel like ther is a hole in my tube that i swallow foodtwith the acid seems to spill out of the hole and burn my ribs i cant eat wen it happens i4 about 2weeks,coz it feels like my tube isnt connected to my stomach qgt seems to stay just above wer the hole feeling my pain feels sadistic. My heart pounds iv got high blood pressure and i am suffering with extreme anxiety i have no1 i dont go out the door most days iv lost my friends family kids and life my gas has been cut off
nicola - 18-May-16 @ 3:58 AM
Hi. A child with behavioural problems and because he fears the perpetrator of domestic violence breaking into his mums house at night he sleeps at his grandparents every night and goes home every morning. All mental health professionals in particular CAMHS and education services, in particular the Medical Education Team (MET) are refusing to give the child the help he needs until he is sleeping at his own home every night. Question: Are mental health professional and educational services legally allowed to make such a demand to a parent on when they will help the child, because surely where the child sleeps every night is not only non of their business but it is also irrelevant to the help they can give him. Thanks Dee
Dee - 25-Apr-16 @ 4:31 PM
I work in a healthcare as a contractor (frontline ambulance). Today, I received an email stating if I won't get a flu vaccine I won't be able to do any work for this particular NHS trust. Is this actually legal? Patients have a choice, I don't (other than losing my job). I am normally very fit and well and have never been off sick with flu or any other health problems.
Tintinka25 - 5-Apr-16 @ 5:01 PM
As of December 2014 I have been suffering with Ulcerative Colitis/Crohns. My condition is refractory to the mainstream medications on offer and for the past year I have been trying to obtain a prescription for Oral Vancomycin. However my GP and Gastroenterologist refuse to prescribe this medication and have offered no satisfactory reason for not doing so! It is my strong believe that my condition is due to Dysbiosis (a Bacterial imbalance in the GI tract). Furthermore, this is a view shared by many professionals and research and double blind trials have proven that Vancomycin offers the very best chance of remission and taken for a prolonged period may even be curative. Unfortunately this antibiotic is expensive and I suspect is the reason for it not being readily prescribed. I would really appreciate your feedback on this and any advice would be very helpful. Kind regards Mark
Vancomycin - 1-Apr-16 @ 6:13 PM
Andrew - Your Question:
I have suffered with M S for over 20 years but fortunately I have been able to control it with fort nightly injections of vitamin B12. Unfortunately I have a new GP and she has stopped them. I have seen the Neorologist and he will not override her decision , however he continues to proscribe the vitamin to other patients. Am I being discriminated against and should I sue? I Adam really very ill without the injection.PUN

Our Response:
You are entitled to ask to see another GP for a second opinion. Has your GP given you a reason for stopping the B12 injections?
AboutHumanRights - 29-Mar-16 @ 11:46 AM
I have suffered with M S for over 20 years but fortunately I have been able to control it with fort nightly injections of vitamin B12. Unfortunately I have a new GP and she has stopped them . I have seen the Neorologist and he will not override her decision , however he continues to proscribe the vitamin to other patients. Am I being discriminated against and should I sue? I Adam really very ill without the injection.PUN
Andrew - 26-Mar-16 @ 12:35 PM
I have a court settlement with for lifetime coverage State Compensation Insurance Fund in California settled in 1992. Everything was fine until 2014 when they stopped paying for all medications and procedures prescribed by my pain management physician, I have been suffering from extreme chronic pain and depression due to my back, shoulder and knee damages due to an on the job injury. I have taken them to Workmans compensation Court twice and nothing became of it, they will still not pay for any meds or procedures. Is there anything I can d do to force them to restore my coverage and is this now considered a Human Rights Issue? I am 66 years old and on SSI and cannot pay for medications as they are forcing me to do despite a lifetime court order? I would appreciate some help with this issue of non compliance. Thank You.
Apsaint1 - 21-Nov-15 @ 11:14 PM
Hi, I have suffered depression since my daughter was born 9 years ago & it has got worse in recent years due to major family problems, I have been on so many anti depressants it's shocking! Out of them all I found one that helped my depression but I'm very prone to headaches & after weeks of being on it the headaches start & become 24/7 & so unable to have normal like sadly have to stop them, I am now referred again to a good cpn who has told me of a similar med to Duloxetine which is the one that helped but caused the major headaches so he told me of a similar one call Venaflaxine (could be wrong spelling sorry) but said it's hard to get on it as its a far more expensive one so rarely used, but he feels it could be worth a try but he has to see the psychiatrist to get it prescribed & they wouldn't do it & gave me Setraline which Iv been on before & made me feel worse, more suicidal thoughts plus they made the headaches, so I don't know where I stand as far as do I have I right to demand these more expensive meds to try, they could work or not but surely after years of trying every other meds I deserve a chance to try this, I'm only still here because of my daughter & want to get better but I'm loosing the hope as the time & I also have a bad spine injury from a job I did age 21, but was young & fit so recovered well but it has really deteriorated so I'm on lots of strong meds, I'm 43 & can only walk ten mins without it going into major pain & spasms & have to stop & they say I don't "qualify" for an mri to see if anything can be done but physio say the damage is too bad for physio to help & have only referred me to pain clinic for stronger meds for it! Can anybody help as I know things are there that could help me or give me chances but I'm being refused them, is that allowed, I'm desperate to be better but feel I'm getting held back, any advice please on my rights? Thanks x
Macy Bud - 19-Nov-15 @ 11:01 AM
Hi, I have suffered depression since my daughter was born 9 years ago & it has got worse in recent years due to major family problems, I have been on so many anti depressants it's shocking! Out of them all I found one that helped my depression but I'm very prone to headaches & after weeks of being on it the headaches start & become 24/7 & so unable to have normal like sadly have to stop them, I am now referred again to a good cpn who has told me of a similar med to Duloxetine which is the one that helped but caused the major headaches so he told me of a similar one call Venaflaxine (could be wrong spelling sorry) but said it's hard to get on it as its a far more expensive one so rarely used, but he feels it could be worth a try but he has to see the psychiatrist to get it prescribed & they wouldn't do it & gave me Setraline which Iv been on before & made me feel worse, more suicidal thoughts plus they made the headaches, so I don't know where I stand as far as do I have I right to demand these more expensive meds to try, they could work or not but surely after years of trying every other meds I deserve a chance to try this, I'm only still here because of my daughter & want to get better but I'm loosing the hope as the time & I also have a bad spine injury from a job I did age 21, but was young & fit so recovered well but it has really deteriorated so I'm on lots of strong meds, I'm 43 & can only walk ten mins without it going into major pain & spasms & have to stop & they say I don't "qualify" for an mri to see if anything can be done but physio say the damage is too bad for physio to help & have only referred me to pain clinic for stronger meds for it! Can anybody help as I know things are there that could help me or give me chances but I'm being refused them, is that allowed, I'm desperate to be better but feel I'm getting held back, any advice please on my rights? Thanks x
Macy Bud - 19-Nov-15 @ 6:57 AM
babs - Your Question:
Being the age of 65 or 69and or 70. restrickting the elderly in this country for certaine tests for the detection of cancer is inhumaine and and robs the elderly of there human rights to survive in order to correct it in time to save a life,it deprives one of there human rights dignity an pride. This gives some Docters the power to restrict paitents give up hope depression sets in which is not a deppression that is caused through medication but through those in powers that be and flouts mankinds human rights to live and survive when could be saved if cancer is detected earlier no matter what age. I am 69 and not had a smear test for many years I suffer with HSV/2 which can cause cancer of the cervex I felt paine there recently and explained this to my doctor at my syrgery but have been refused a smear test because of my age how barberick is this becoming when your rights are stripped of this. I have woked all my life as an engineer and nursing right to retirement at the age of 60 became disabled due to multiple medical disorders. I am an Inovator. My Husband and I where born in Britain we are a mixed married couple. But they say there is no racielizm in the NHS Not true as I have experienced with certaine Doctors and Specialist when attending appointments for my medical problems.

Our Response:
In general the age differentiations are based on medical evidence. If your GP thought a smear test would help with your situation we're sure they would have arranged this regardless of the age for standard testing.
AboutHumanRights - 27-Aug-15 @ 12:39 PM
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