The Human Rights Act is to be brought into effect on 2 October. It is self-evident that it will have an immediate impact on public and criminal law, but it may also have a significant impact on the law of clinical negligence.
The articles that are likely to have an impact on this area of law are Articles 2, 3 and 8. Both Articles 2 and 3 confer absolute rights which means they cannot be derogated from, even in times of war or public emergency. Article 8 is a qualified right.
Article 2
Article 2 states that: “Everyone’s right to life should be protected by law.”
This article is likely to have the greatest impact. The Court has recently stated that Article 2 “ranks as one of the most fundamental provisions in the Convention” and that “together with Article 3, it enshrines one of the basic values of the democratic societies making up the Council of Europe” [McCann v UK (1996) 21 EHRR 27].
The Court has held that Article 2 places on the state and, once the Human Rights Act comes into effect, on public authorities a positive obligation to protect the right to life in addition to the negative obligation not to take life, other than in certain exceptional circumstances. Public authorities will include health authorities, NHS trusts and other similar bodies (as well as the Department of Health).
According to the Lord Chancellor, it will also include doctors when they are caring for NHS patients, but not when they are treating private patients.
There is some scope for the dynamic development of the right to life in our domestic courts in this field. For example:
1.There is scope for arguing that Health Authorities and Trusts are obliged to make adequate provision for medical care in all those cases where the right to life of a patient would otherwise be endangered. (The commission has already held that the state must take adequate and appropriate steps to protect life [X v UK 14 DR 31, 32]. Such an argument throws up several interesting questions:
(a)The lack of resources will provide no defence to any such claims of medical negligence – for example, if it could be shown that the patient would have avoided death or injury if some new piece of, albeit expensive, equipment be made available, it will be no defence for the Health Authority to say that it lacked the resources to purchase it although in the recent important case of Osman v UK [(2000) 29 EHRR 245] the court held that the obligation under the Convention to take appropriate steps to safeguard life must be interpreted in a way that does not impose an impossible or disproportionate burden on the authorities.
(b)The Article might also be invoked if it could be shown that death or injury would have been avoided if a more senior doctor (such as a consultant) had been made available to carry out the operation, or provide the necessary care or treatment.
Despite the reference to deprivation of life, Article 2 is not restricted to those cases where death has occurred. It also covers cases where injury has been sustained provided that loss of life was a possible consequence of the conduct that is being complained of. This could have far-reaching implications in clinical negligence, for example:
(1)This approach could provide a means of challenging the Bolam test since it appears to be inconsistent with it, unless our courts are to construe the requirement to provide adequate provision for medical care as meaning the same as taking reasonable care, which seems unlikely.
If the care provided was negligent, then by definition it will almost certainly not have been adequate. But the opposite might not apply: if the care was not negligent, it would not necessarily follow that it was adequate. Thus, the scope for liability could be significantly enlarged.
(2)Such an approach would call into question the need to establish negligence at all. If a public authority is obliged to make adequate provision for medical care in circumstances where the life of the patient could be at risk and fails to do so, then on
the face of it, a breach of Article 2 has been established and the patient succeeds.
It might also be possible to frame actions against the Department of Health under Article 2, for example, for failing to provide adequate protection in circumstances where death or injury may otherwise result (such as in relation to providing information to the public or banning certain drugs).
Some concrete examples might include a claim arising out of lack of information in relation to
the dangers of BSE or a failure to ban a drug that was potentially harmful to pregnant women.
Article 3
Article 3 provides: “No-one should be subjected to torture or to inhuman or degrading treatment or punishment.”
At first sight, this would seem to have no conceivable application to the law of clinical negligence, but this would be too simplistic a conclusion. There are a number of areas in which it could apply:
1.The commission has already stated [Tanko v Finland No. 23634/94 DR 77-A] that it “does not exclude that a lack of proper medical care in a case where someone is suffering from a serious illness could in certain circumstances amount to treatment contrary to Article 3″.
To advance such an argument would not necessarily involve proof of negligence as it would be for the court to define what is meant by “proper medical care”.
2.The commission has already ruled that experimental medical treatment may amount to inhumane treatment, if not torture, in the absence of consent [X v Denmark 32 DR 282]. In these circumstances, experimental might mean no more than treatment that has not yet become properly established; in which case it could be of wide application.
3.It is already well established by Strasbourg case law that there is an obligation under Article 3 to provide adequate medical treatment for people in detention (for example, in a mental hospital).
However, in practice Article 3 is often relied upon as a secondary basis of complaint to Article 2.
