Last month's article introduced the fundamental concepts underpinning human rights law and their application to nursing practice (Griffith, 2021). The main provisions of the European Convention on Human Rights (Council of Europe, 1950) have been incorporated into domestic UK law under the provisions of the Human Rights Act 1998, which gives Convention rights direct effect. Arguably, the most fundamental of these human rights is the right to life, under Article 2 (Council of Europe, 1950). The Human Rights Act 1998, schedule 1, part 1, provides that:
‘Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ‘Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained (c) in action lawfully taken for the purpose of quelling a riot or insurrection.’
In McCann v United Kingdom [1996] the European Court of Human Rights held that the right to life under Article 2 ranks as one of the most fundamental provisions in the Convention and it enshrines the basic values of the democratic societies making up the Council of Europe. Despite its fundamental nature, it can be seen that the right to life in the Convention is not absolute. It does not consider the use of deadly force to be a breach of the Article in self-defence, when effecting an arrest or quelling a riot.
The self-defence exception was used in A (Children) (Conjoined Twins: Medical Treatment) [2001] where lawful justification was required to separate a conjoined twin from her sister when doing so would result in the death of the other twin. The Court held that Article 2 would not be breached as the operation to separate the twins was necessary to protect the life of the sister, a form of self-defence, and gave her the prospect of an independent existence and normal life expectancy, as opposed to almost certain death due to heart failure if she remained joined to the other twin, who had no viable organs of her own.
Positive obligations under Article 2
The first line of Article 2 says that everyone's right to life shall be protected by law. This requirement requires the NHS and its nurses not only to refrain from taking life, whether intentionally or carelessly (known as a ‘negative obligation’ (Griffith, 2021)), it also imposes on the state, and the NHS, a positive obligation to protect the right to life. That is the NHS must take adequate and appropriate steps to protect life by ensuring that:
- People are protected against the risk of harm from the activities of the NHS
- Suspicious deaths are investigated
- People are protected against threats to their lives
- Arrangements are in place to secure legal accountability for those responsible for a death (LCB v United Kingdom [1998]).
Protecting vulnerable patients
The positive obligations arising from Article 2 mean that nurses and their employing trusts and health boards have an operational obligation to protect life where they know, or ought reasonably to know, of a real and immediate risk to life (Osman v United Kingdom [2000]).
In Savage v South Essex Partnership NHS Foundation Trust [2008] a woman with paranoid schizophrenia had committed suicide after absconding from a hospital run by the Trust. An inquest found that the precautions taken by the Trust to prevent the woman from absconding were inadequate.
The judicial committee of the House of Lords held that there was an operational obligation to protect the lives of patients in hospitals. This included preventing patients detained under the Mental Health Act 1983 from committing suicide. The operational obligation arose if members of staff knew, or ought to have known, that a particular patient presented a real and immediate risk of suicide. In those circumstances Article 2 required them to do all that could reasonably be expected to prevent the patient from committing suicide.
The operational obligation meant that in the critical circumstances of a real and immediate risk of a patient committing suicide, priority had to be given to saving the patient's life. The operational obligation gave rise to two further complimentary duties on trusts and health boards—they had to employ competent staff and have systems of work that would protect patients' lives.
In Rabonne v Pennine Trust [2012] the UK Supreme Court confirmed the operational obligation to prevent suicide, even where a patient was not detained. In this case, the patient had been admitted because of her suicide risk. The Trust was responsible for the patient and she was under its control. By failing to use the formal powers of the Mental Health Act 1983 to prevent her leaving hospital, it had breached the operational obligation to prevent her suicide. The Trust was held to have breached her rights under Article 2 of the Convention.
No right to die
Article 2 of the Convention sets out the right to life, including an operational obligation to protect life and prevent suicide. It does not give rise to a right to die. In Pretty v United Kingdom [2002] the European Court of Human Rights held that Article 2 could not be interpreted as conferring a right to die. It does not create a right to choose death rather than life. Several of the countries that have laws that allow euthanasia and assisted suicide are signatories to the Convention, as is the UK, which considers euthanasia and assisted suicide to be serious criminal offences. The absence of a right to die or right to determine the manner of death under Article 2 means that euthanasia is a matter for individual states to decide and is allowed under a ‘margin of appreciation’ concept set out in the Convention. This allows states to take account of cultural and legal traditions when fulfilling their obligations under the European Convention of Human Rights (1950) (Griffith, 2021).
Futile treatment
Article 2 of the Convention does not consider withdrawing or withholding what can be shown as futile treatment, which results in a person's death, to be a breach of that person's right to life.
In NHS Trust A v M [2001] a hospital sought permission to discontinue artificial hydration and nutrition to a person who had been diagnosed as being in a minimally conscious state. The Court noted that Article 2 imposed a positive obligation to give treatment where that is in the best interests of the patient—but not where it would be futile. Discontinuing treatment would not be an intentional deprivation of life under Article 2; and provided that withdrawing treatment was in line with a respected body of medical opinion, would not breach Article 2.
Conclusion
The right to life is considered to be a fundamental element of the European Convention on Human Rights (1950). As well as imposing a negative obligation on nurses not to act in a way that would intentionally or carelessly endanger the life of patients in their care, it also gives rise to an operational positive obligation requiring nurses to protect patients where they know of an immediate and serious risk to life.
The right to life under Article 2 of the Convention is not absolute nor does it impose a diametric right to die. Treatment that sustains life can be withdrawn or withheld if it is futile. Euthanasia and assisted suicide are matters for each member state of the Council of Europe to decide upon. Currently in the UK each is considered a serious criminal offence.
KEY POINTS
- The most fundamental human right is the right to life under Article 2 of the European Convention on Human Rights
- Article 2 imposes on the NHS a positive obligation to protect life. This means that nurses have an operational obligation to protect life where they know, or ought reasonably to know, of a real and immediate risk to life
- Article 2 does not give rise to a right to die
- Treatment that sustains life can be withdrawn or withheld if it is futile