Understanding how human rights law affects nursing practice

The Human Rights Act 1998 gave direct effect to the main provisions of the European Convention of Human Rights (Council of Europe, 1950) and has had considerable influence on the provision of health care in the UK at both strategic and practice levels. The fundamental nature of the rights and freedoms bestowed by the 1998 Act demand that nurses inform their practice with a clear understanding of the main provisions of the Act and how they apply to health care.

The need for a Human Rights law in the UK

Following the Second World War the European Convention on Fundamental Rights and Freedoms (1950) (the Convention) was created by the Council of Europe to formalise the relationship between individuals and the country they are in. The main purpose of the convention was to limit a state's interference with the rights of citizens.

The UK became an early signatory to the Convention in 1950. However, enforcing human rights was a difficult and protracted process because the UK parliament had never incorporated the Convention into domestic law. Individuals who felt their human rights had been breached had to seek redress in the European Court of Human Rights based in Strasbourg, a process that took on average 6 years (HL v United Kingdom (2004)).

The Human Rights Act 1998 unlocked Convention rights by giving them direct effect and making them enforceable in UK law (see Box 1).

Box 1.Main rights incorporated by the Human Rights Act 1998

The purpose of the Human Rights Act 1998

The Human Rights Act 1998 works by unlocking Convention rights and giving them direct effect. They are enforceable before UK courts and tribunals. It is unlawful for public authorities to act in a way which is incompatible with them (Human Rights Act 1998 section 6).

The main public authorities in health care include:

• Courts and tribunals
• NHS bodies such as trusts, health boards and clinical commissioning groups
• Private and voluntary sector contractors undertaking public functions under contract to the NHS
• Local authorities, including social services
• GPs, dentists, opticians and pharmacists when undertaking NHS work
• A body that has the functions of a public nature, such as a professional regulatory body.

It can be seen that this includes the NHS and, therefore, district nurses for example as part of that service.

How the Human Rights Act 1998 works

The Human Rights Act 1998 requires all legislation to be interpreted and given effect in order to comply with Convention rights, regardless of when the Act in question came into force (Human Rights Act 1998, section 3).

If it is not possible for a court to do this, it may quash or disapply subordinate legislation, such as Regulations or Orders.

If primary legislation or an Act of parliament appears not to comply with the Convention, the courts may make only a declaration of incompatibility and leave it to parliament to amend the offending Act (Human Rights Act 1998, section 4). This is achieved by a minister making a remedial order to amend the legislation to bring it into line with Convention rights.

An early use of the declaration of incompatibility in health legislation required an amendment to the Mental Health Act 1983. In R (H) v Mental Health Review Tribunal for North East London Region [2001], the Court of Appeal declared that sections 72 and 73 of the Mental Health Act 1983 are incompatible with the Human Rights Act 1998, because they failed to put the burden of proof for continued detention on the detaining authority. In response, the Health Secretary issued a remedial order amending the sections in line with the 1998 Act that came into force some 120 days later.

Human rights and common law

In addition to scrutinising legislation for compatibility with the Convention, courts and tribunals in the UK must also take account of Convention rights in all cases that come before them (Human Rights Act 1998, section 2). Courts must also take account of the body of existing European Court of Human Rights case law.

British law now has a truly European influence, despite Brexit, with cases from countries such as France, Finland, Belgium, Russia, Bulgaria and Austria impacting our domestic law and also influencing nursing practice.

The supervisory role of the courts

Prior to the introduction of the Human Rights Act 1998 the role of the courts in supervising the decisions of public authorities was limited. Under administrative law, the courts were able to subject the decisions of public authorities to judicial review, but would only overrule such a decision if it were irrational or perverse (Associated Provincial Picture House Ltd v Wednesbury Corporation [1947]).

Courts now have a far greater role in supervising the decisions of public authorities when human rights are in question.

In R (Mahmood) v Secretary of State for the Home Department [2001], Lord Phillips MR held that, where interference with a fundamental freedom was at issue, the court was required to tailor the level of its scrutiny according to the level of the interference. Significant interference with a fundamental freedom would require substantial objective justification.

Positive and negative obligations

Article 1 of the European Convention on Human Rights requires that states take steps to secure fundamental rights and freedoms for their citizens. This creates a positive obligation on states to ensure that appropriate laws and policies are in place to protect citizens and allow them to enjoy the rights and freedoms contained in the Convention.

Positive obligations under Human Rights Law have required strategic awareness of the impact of human rights on the provision of health care:

• The positive obligation under Article 2 places an operational duty on health services to protect the lives of patients, including protecting individuals from the risk of suicide (Rabone v Pennine Care NHS Foundation Trust [2012])
• The positive obligation under Article 5 requires health and social services to protect people from being deprived of their liberty by private individuals (Staffordshire CC v SRK [2016])
• The positive obligation under Article 8 requires health bodies to have policies and checking procedures in place that ensure patients' rights for a private and family life are respected (Evans v United Kingdom (2007)).

A negative obligation requires that a state and its public authorities respect human rights in their day-to-day dealings with individuals. Nurses are under a negative obligation not to act in a way that would violate the human rights of people in their care.

Conclusion

Human rights were described by Lord Hoffman in Matthews v Ministry of Defence [2003] as the rights essential to the life and dignity of the individual as a human being.

The incorporation of the main provisions of the European Convention on Human Rights into domestic UK law by the Human Rights Act 1998 has had a considerable impact on nursing and health care more widely. It is essential that nurses understand how the Human Rights Act 1998 works so that they can effectively discharge their negative obligation not to violate the human rights of patients in their care. The positive obligation to protect individuals from having their human rights violated by another member of the public requires health bodies to have in place operational procedures that safeguard people.

Next month's article will consider how the positive and negative obligations under Article 2 of the Convention, The Right to Life, influences nursing practice.

KEY POINTS

• The Human Rights Act 1998 incorporates the main provisions of the European Convention on Human Rights into British law
• The Human Rights Act 1998 requires that public authorities, including the NHS, comply with Convention rights
• Convention rights give rise to positive and negative obligations which health professionals should understand and abide by