Human Rights and Medical Treatment

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.