With due respect

The introduction of the Human Rights Act places new demands on the
profession to respect the privacy of both staff and clients with regard to
medical records.  By Joan Lewis and
Linda Goldman

In 1950 The Convention on Human Rights was created through the Council of
Europe to establish rules of conduct which would ensure prevention of inhuman
conduct, while maintaining respect for the dignity and independence of mankind.

Despite the UK being the first to sign the Convention, it has taken 50 years
to become actively enshrined into law. Prior to the Human Rights Act taking
effect on 2 October an individual who alleged infringement of a human right
would have taken their case to the European Court of Human Rights (ECHR) in
Strasbourg. The new law brings this type of litigation into the domestic courts
where it is hoped there will be a reduction both in the average five-year delay
inherent in that process and in expense.

The Act provides that it is unlawful for public authorities such as courts
and tribunals, local authorities and health trusts, to breach any article of
the Convention. A claimant will succeed in their case if they can prove there
has been a breach of the Convention even if there has been no negligence.

This will change the way medical and personal injury claims will be
conducted in the future. This type of litigation will come under Articles 2, 3,
6 and, if all else fails, 14. Articles 2 and 3 are non-delegable so NHS trusts
will no longer have unfettered discretion in allocation of resources and may
not be able to resist providing expensive treatment to save life.

The occupational health profession has interests covering medical and
employment matters in which there is a conflict between employee, patient and
client rights to confidentiality and employer needs to know whether a person is
fit for work and why any fitness might be qualified to some degree.
Confidentiality takes on a new perspective with the right to private and family
life. Thus, e-mail and telephone surveillance or improper release of medical
records could constitute a breach of human rights under Article 8.

The courts are required to take account of decisions of the ECHR in reaching
conclusions. Confidentiality issues have already been covered in several
high-profile cases at Strasbourg. In Z v Finland (1998) 25 EHRR 371, it was
held that the duty to keep a patient’s information confidential is not absolute
and can be overridden by public policy. This is similar to one of the
long-standing exceptions to the general ethical principle of confidentiality.

Professional conduct

Bodies such as the UKCC and the GMC have the function of determining a
person’s fitness to practise in the nursing and medical branches of the profession.
Complaints about alleged breaches of Article 6 – the right to a fair trial –
may now be brought in domestic courts.

The type of cases which have been determined in the ECHR will now come
directly to the UK courts. Thus, proceedings must be brought expeditiously. A
10-year delay in bringing disciplinary proceedings, such as in Konig v Germany
(1978) 2EHRR170, amounts to a breach of Article 6, whatever the merits of the
complaint against the doctor. Dr Konig was compensated by an award of damages of
DM30,000 (£25,000).

The effect of the new law

Prior to the Human Rights Act coming into force, an individual had – and has
– the right to carry out any act so long as it is lawful. There is now a
positive emphasis on the rights a person is entitled to enjoy. The question is
whether a public authority is wrong to put an alleged constraint in place. The
answers to the problems posed by this question will be revealed in the courts
in the coming months and years.

Linda Goldman is a practising barrister at Lincoln’s Inn. Joan Lewis is
director of Advisory Consulting and Training Associates, Nr Wing, Bucks.
Case research by Leon Taylor at Lincoln’s Inn

The rights

Article 2          Right to
Article 3          No
torture/degrading punishment
Article 4          No
Article 5          Right to
liberty/security of person
Article 6          Right to fair
Article 7          Freedom from
retroactive criminal offences and punishment
Article 8          Right to
respect for private and family life
Article 9          Freedom of
Article 10        Freedom of
Article 11        Freedom of
assembly or association
Article 12        Right to marry
and found a family
Article 14        No
discrimination in enjoyment of Convention Rights
Article 1 of the 1st Protocol  
Right to peaceful enjoyment of possessions
Article 2 of the 1st Protocol  
Right to education
Article 3 of the 1st Protocol
Free elections to the legislature

Cases with human rights implications

Airedale NHS Trust v Bland [1993] AC 789

B was seriously injured during the Hillsborough disaster. He suffered
catastrophic brain damage which left him in a persistence vegetative state
(PVS) with no hope of recovery. The trust, with the family’s support, applied
to the court for leave to withdraw life-sustaining treatment including
ventilation, nutrition and hydration. The House of Lords decided that, on the
medical evidence available, it was not in B’s best interests that this range of
medical treatment should continue.

Article 2(1) of the Convention provides that an individual has the right to
life. However, Article 8 imposes a duty to respect the moral integrity and
dignity of an individual such as B by respecting his private and family life.
Thus, a person in a PVS who has previously expressed the wish to be allowed to
die is entitled to have weight given to his views. In B’s case, one of the
judges in the House of Lords expressed the view that it was in the "best
interest of the community" that treatment be withdrawn because of the
amount of NHS resources required to be devoted to treatment. However, the
Article 2 duty could preclude withdrawal of treatment on the grounds of
expense. Nevertheless, the Act requires proportionality and there remains
argument about balancing the patient’s right to life against the interests of
the wider community or – as in the recent Siamese twins case – against the
interests of another individual who also has the right to life.

Z v Finland (1998) 25 EHRR 371

Z was the wife of a suspected sexual offender. She refused her consent for
the police to investigate her HIV status. The police therefore acted to seize
Z’s medical records from her hospital. The records were entered in to the court
file which was due to be released into the public domain. The court decided
that the police had acted in breach of Article 8 (right to respect for private
and family life). It was crucial not only to respect the privacy of a patient
but also to preserve his or her confidence in the medical profession. Without
the necessary safeguards to prevent the disclosure of personal health details
in breach of the Convention, those in need of medical attention may be deterred
from revealing such personal information as may be necessary to receive
treatment, and even from seeking medical assistance in the first place, thereby
endangering their own health. Nevertheless, the court went on to decide that,
although there had been a breach of Article 8(1), that breach was "in
accordance with the law within the meaning of Article 8(2) and was proportionate
to the legitimate aim of the prevention of crime."

Other circumstances in which a breach of an individual’s right to respect
for private and family life might be justified are where it is in the interest
of national security, public safety or the economic well being of the country,
the protection of health or the rights and freedoms of others.

X v Denmark (1983) 32 DR 282

X discovered she had been involved in experimental gynaecological treatment
without her consent. Article 3 expresses the right not to be subjected to
torture or inhuman or degrading punishment. If there is no consent, as when
participating in a blind trial, that could come within Article 3, particularly
if the treatment is humiliating or debasing to the individual concerned by
reason of not knowing that it was experimental. Even where there is no consent,
invasive medical treatment can only be justified under Article 8(2) for the
protection of health. The threshold required to prove a breach of Article 3
would appear to be very high and it will generally be difficult to establish
liability save in exceptional circumstances. However, failure to provide
medical treatment, albeit experimental, to a very sick person could constitute
a breach of Article 3.

MS v Sweden (1998) EHRLR 115

MS claimed state compensation for a back injury. The treating clinic
disclosed her full medical records to the Social Insurance Office at its
request but without her consent. ECHR held there was a breach of Article 8 but
that it was justified under Article 8(2) because the disclosure was necessary
to dispose of her compensation claim. The use of her records was in accordance
with the law and had the aim of protecting the economic wellbeing of the
country by ensuring proper use of public funds.

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