Rapid Responses to:
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Rapid Responses: Rapid Responses published:
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Human Rights Act and Resources
- Roger Johnson (30 September 2000)
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For Society's good?
- David Carvel (1 October 2000)
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Re: For Society's good?
- Brian Morgan (2 October 2000)
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Re: Human Rights Act and Resources
- Barbara Hewson (2 October 2000)
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Welcome to Human Rights
- Jayantha Ilangaratne (2 October 2000)
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Circumcision of Male Children May Vanish from British Medical Practice
- George Hill (4 October 2000)
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Re: Human Rights Act -Resources and discrimination
- Adrian Roberts (9 October 2000)
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Roger Johnson, Medical Director, Manchester Health Authority Manchester Health Authority
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Barbara Hewson states that "Excuses about lack of resources will cut no ice under article 3" I understand this to be incorrect. I gather that judges in Europe have been as cautious about overriding national allocation processes as historically has been the case in the UK. I would like her to cite the cases in Europe where courts have directed health authorities to undertake procedures restricted in that jurisdiction following a constitutional process of determining resource allocation. The expectation that is being raised in patients minds that this will be a free for all after October 1st should be qualified by the facts and it would be helpful if she could qualify her statement if I am correct. |
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David Carvel, GP Glasgow G41 3EH
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It seems laudable that we are about to see the introduction of the Human Rights Act 1998 here in the UK. Barbara Hewson goes as far as describing it as "monumentous" in our constitutional history. There are however several concerns from a medical perspective that I have. Under article 10:Right to freedom of expression and information, Hewson suggests "drug companies will be vigilant in protecting their rights to property and freedom of speech: bans on direct-to-consumer advertising will almost certainly be challenged." In other words, the pharmaceutical industry will exploit their new "right" to advertise to the public prescription-only drugs in any emotive or sexy way they wish, undermining the doctor-patient relationship at all levels, for their financial gain rather than the purported general good. Elsewhere in the same edition of the BMJ we see the major influence this has in overall drug sales.* Will the tobacco companies similarly exercise this "freedom of speech", just when it seemed the law was sensibly being strengthened regarding tobacco sponsorship in sports and tobacco advertising in general? Hewson also states "it should not be a sufficient defence (to a medical accident) to say that other responsible professionals would have done the same thing." Does this mean that not only should we be of the same quality as our colleagues but even better? It would effectively undermine the GMC and Royal colleges' desire to maintain the highest standards and lead to unnecessary court cases. I would suggest one's rights are only part of the equation. Can we expect the "human responsibilities and privileges Act" to follow shortly? One has responsibilities for oneself. These include: eating healthily, not smoking or taking other toxins and taking regular exercise. There are responsibilities towards others too ie. providing love and security for one's family and not causing others harm of any sort. I predict this Act will help make healthcare more of a commodity and our society even more selfish and litigious. David Carvel MRCGP * BMJ 2000;7264:783 US prescription drug sales boosted by advertising. |
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Brian Morgan, Freelance Journalist Cardiff
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My understanding of Barbara Hewson's point regarding Human Rights and the Bolam Test, is that the courts may in future have to weigh the evidence as to the propriety of a doctor's actions on the actual merit of what they may or may not have done - rather than the doctor being able to call colleagues to say they would have done the same in the same circumstances. I stand to be corrected. To the layman it seems quite obvious that doing the wrong thing is still wrong, no matter how many other people would have done the same. The doctor should have to explain on clear evidence based grounds that what he or she did was justifiable. It is no defence when being prosecuted for jumping a red light or speeding to say many others would do the same thing in the same situation. The Bolam test is regarded as infamous by many - but has been a great boon to the medical profession. Discuss. |
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Barbara Hewson, Barrister Littman Chambers, 12 Gray's Inn Square
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I am happy to respond to the interesting query by Dr Roger Johnson (Human Rights Act and Resources, 30 September). My point was that lack of resources would not afford a defence to a violation of article 3. This article imposes an absolute obligation not to inflict torture or inhuman or degrading treatment. A minimum threshold of severity has to be established before Article 3 can be breached. In Hurtado v Switzerland (1993) Series A No 280-A, the European Commission on Human Rights found that a detainee, who defecated on arrest but was not allowed to change his clothes for a day, was a victim of degrading treatment. The state had failed to take the most elementary hygiene measures. I think that similar reasoning would apply if a patient were left in urine-soaked bedding. It would be no defence that there weren’t enough nurses to change patients regularly. Deporting a person in the terminal stages of AIDS, to a country with no appropriate facilities, has been held to be a breach of article 3: D v United Kingdom (1997) 24 EHRR 423. Thus, to abruptly withdraw facilities from (say) terminally ill patients, could also breach Article 3. I am happy to respond to the interesting points made by Dr David Carvel (For Society’s Good, 30 September). Article 10 expressly states that the exercise of freedom of expression “carries with it duties and responsibilities”. In freedom of speech cases brought by drugs companies, the courts will have to decide whether existing restrictions on advertising are compatible with Article 10. Restrictions are permissible in the interests (inter alia) of public safety and the protection of health. Accordingly, a free-for all is unlikely to result, though existing restrictions may be tempered. As for the “Bolam test”, my point was that patients’ lawyers would try to challenge this. They will. Whether they succeed is another matter: the courts may well conclude that the existing test adequately protects patients’ human rights. I hope that this allays Dr Carvel’s concerns. He is right, for example, to suggest that rights are not (apart from Article 3) absolute. Indeed, there is no right to be healthy. The new Act does not create an express right to healthcare either: arguments about healthcare will arise through the application of other rights. Whilst we can expect some interesting cases, I see no need for alarm. |
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Jayantha Ilangaratne, Doctor Medical-Journals.com
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As identified in Hewson’s timely editorial(1),Judges in the UK will not have the power to strike down acts of parliament. That is probably a sensible and welcoming provision in a democracy, especially given the non- elected status of Judges. Further,the well known affiliations of the judiciary to groups such as Freemasons, makes it even more important that Judges are limited in their powers to dismantle statutes drafted by a democratically elected government. Hewson says(1) that Bolam test could be reviewed under the Human Rights Act 1998.In fact,in Bolitho vs City and Hackney Health Authority [1997] UKHL 46 House of Lords reviewed the original Bolam principle and it was held: "In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible." As to the NHS,in addition to getting rid of archaic 'patient- unfriendly' practices, it will have to demonstrate greater transparency in relation to complaints procedures and inquiries.In fact,in Regina v General Medical Council,ex parte Toth(23 June 2000,QBD) the Court clearly set out the need for the General Medical Council to be more transparent under the said Act when dealing with complaints against doctors.Based on that judgment, it is fairly clear that the NHS too will not have any easy escape routes when faced with legitimate concerns of patients. Further,the NHS Litigation Authority will also come under greater scrutiny in view of this Act,and indeed,rightly so. REFRENCES (1)Hewson B.Why the human rights act matters to doctors.BMJ 2000;321:780-781. |
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George Hill, Retired Formerly: Captain, Eastern Air Lines, Inc.
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Circumcision of Male Children May Vanish from British Medical PracticeTo the Editor:Barbara Hewson correctly observes that the Human Rights Act 1998 is likely to have far reaching effects on British medical practice.1 Circumcision of male children, already in severe decline,2 may be one of the first medical practices to vanish. The Prohibition of Female Circumcision Act 1985 provides protection of the bodily integrity of female children, but offers no protection for male children.3 This discrimination against male children is likely to conflict with the new provisions against discrimination on the basis of sex.4 The Human Rights Act 1998 may extend this protection of bodily integrity to male children. Involuntary circumcision of male children may also be viewed as a violation of the Article 3 prohibition of inhuman and degrading treatment, except perhaps in some rare case in which there exists some extremely compelling medical indication. Moreover, the Court of Appeal recently ruled in the conjoined twins case that the consent of parents may be given for treatment only in the best interest of the child.5 Male circumcision amputates physiologically functional specialized sensory erogenous tissue essential for normal sexual function,6 and can no longer be regarded as a beneficial treatment in the best interest of the child, except perhaps in the rarest circumstance. Male circumcision, in the past, has been prescribed for treatment of balanitis and phimosis, but the need for circumcision as treatment for those conditions now has been almost completely eliminated by the development of effective, conservative, non-traumatic, non-invasive, non-destructive, alternative therapies for those conditions.7-9 If parental consent for male circumcision is vitiated by the Court of Appeal decision, then circumcision of male children would seem to be a crime of battery and a tort of trespass to the person,5 for which appropriate remedies would apply.
George Hill
1 Hewson B. Why the human rights act matters to doctors. BMJ 2000;321:780-781.
2 Rickwood AMK, Kenny SE, Donnell SC. Towards evidence based circumcision of English boys: survey of trends in practice. BMJ 2000;321:792-793.
3 Prohibition of Female Circumcision Act 1985. London: Stationery Office, 1985.
4 Human Rights Act 1998. London: Stationery Office, 1998.
5 Court of Appeal, Case No. B1/2000/2969, 22 September 2000.
6 Cold CJ, Taylor JR. The prepuce. BJU Int 1999;83 Suppl. 1:34-44.
7 Birley HDL, Luzzi GA, Bell R. Clinical features and management of recurrent balanitis: association with atopy and genital washing. Genitourin Med 1993;69:400-403.
8 Dewan PA, Tieu HC, and Chieng BS. Phimosis: is circumcision necessary? J Paediatr Child Health 1996;32:285-289.
9 Lane TM, South LM. Lateral preputioplasty for phimosis. J R Coll Surg Edinb 1999;44(5):310-2.
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Adrian Roberts, Barrister 2 Gray's Inn Square Chambers & Visiting Lecturer, City University St. Bartholomew School of Nursing
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The (European) Court may not have gone so far, yet, as to say that Aricle 2 (The Right to Life) implies a right to medical treatment: there is an on-going debate as to the minimum level of care which a state might have to provide to be consistent with this right. At the same time, Article 3 (freedom from inhuman and degrading treatment)was used in an imaginative way [1] to say that withdrawal of treament, in that case by deportation, could be a breach of the Convention. But discrimination between patients, for example on grounds of age or disability, in the provision of life-saving treatment, as well as the "postcode lottery" would appear to be a potential breach of Article 14, the right to enjoy other convention rights "without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status". The "other status" category is open, with the listed grounds simply being those agreed on as particularly pernicious by all contracting countries. Article 14 is parasitic on other rights, but if medical treatment is within the area of articles 2 and 3 (and arguably also 8- right to respect for private life), it may then be brought into the argument. On the other hand, I suspect a smoker denied heart surgery for refusing to give up smoking would have a hard time arguing status discrimination. [1] D v United Kingdom (1997) 24 EHRR 423 |
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