Key legislation - Understanding the workings of the Human Rights Act
A person can only bring a case under the HRA if the act or decision in question is one made by a public authority or body. Public authority is not defined but includes local authorities such as councils, central government departments, NHS trusts and state-run schools, hospitals and prisons.
The Act also covers private bodies that exercise public functions as set out by the Equality and Human Rights Commission (ECHR):
The provision of policing and prison services, healthcare, including residential care of the elderly, government policy making or local authority planning services.EHRC 2012
People who are funded or partially funded by the local authority and living in private care homes can, therefore, bring a case against the home. Section 145 of the Health and Social Care Act (HSCA) 2008 states that private and voluntary sector organisations providing residential care services under contract to local authorities are bound by the HRA. However, people who pay for their own care are not protected by the HRA (Age UK 2011). Their rights may be protected by the MCA, provided they lack mental capacity to make decisions about their care.
An important feature of the Convention is that it is a living instrument that is designed to be interpreted in the light of current social and cultural conditions. It is not 'frozen' in the 1950s when it was first drafted. So the fact that a challenge under the Convention has failed in the past does not mean that it will not succeed in the future. The idea of rights as things that evolve as we become more aware of the impact of certain practices is particularly relevant to how people are treated in social care and health settings. For instance, practices that were seen as institutional norms in the 1950s may now be seen as inhuman or degrading treatment.
Margin of appreciation
This is a technical term that has lost some clarity in its translation from French. It means that the European Court of Human Rights will allow domestic courts (e.g. in the UK) some space to make decisions that reflect their national domestic concerns, rather than impose its interpretation on the way the rights laid out in the Convention should operate. This is particularly relevant when the domestic courts have to weigh up competing priorities, for instance the individual liberty of the person using the service and the safety of workers providing the service. Of course, the margin of appreciation can only go so far; the European Court of Human Rights does ensure some consistency in the interpretation of the Convention.
Only 'victims' can take action under the Act. What this means is that only people who have been directly affected by an act or omission of a public body can take action using the Act. This means that a patient pressure group, for instance, could not take action to enforce patients' human rights. It could, however, be involved in any action taken by a person directly affected, for example by providing support, expertise and evidence. Victims do not have to be UK citizens.
Rights under the Convention
The rights in the HRA are taken straight from the ECHR. Rights are formulated in different ways under the Convention and are categorised as absolute, limited or qualified.
Some rights are so fundamental that they are absolute. These rights include the right to protection from torture, inhuman or degrading treatment, and the prohibition on slavery. The definition of, and threshold for, inhuman and degrading treatment, however, is not clear. See information on Article 3 for more details.
Some rights are limited. Breaching them is permitted but only in the explicit and finite circumstances set out in the Convention, for example the need to protect others. The Convention provides exceptions, for example with regard to Article 5 (the right to liberty and security). Exceptions include the power of the state to arrest and detain people suspected or convicted of crimes and the detention of people with 'unsound' mind. Article 5 also states: 'Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful'. This has enabled people admitted to hospital under compulsion, or 'sectioned' under the MHA 1983, to challenge the operation of mental health review tribunals for not being speedy enough and for failing to ensure that patients are discharged quickly if the criteria for detention are not met. The Deprivation of Liberty Safeguards protect the rights of people who suffer from a mental disorder, such as dementia, learning disability or acquired brain injury, but who do not meet the criteria for detention under the MHA 1983.
Certain rights are qualified, which means that interference with them (i.e. action that limits someone's freedom under a qualified right) is permissible only if:
- there is a clear legal justification for the interference
- the action is necessary to achieve a legitimate aim – legitimate aims are set out in each article of the Convention
- the action is necessary in a democratic society; in other words, there must be a pressing social need and the action taken must be proportionate to and no greater than the problem it seeks to resolve.
Examples of qualified rights are the right to respect for private and family life (Article 8) and the right to freedom of expression (Article 10). The wording of Article 8, the right to respect for private and family life, illustrates what is meant by a qualified right:
There shall be no interference by a public body with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.Paragraph 2, Article 8
So, in certain carefully defined circumstances Article 8 rights can be interfered with.
This article is particularly important in connection with the provision of personal care services and with the handling of confidential information. The limits on Article 8 that are particularly relevant for care workers are where an action that would interfere with someone's Article 8 rights is necessary for the protection of health or morals or for the protection of the rights and freedoms of others.
This does not mean that the right can be overruled in all circumstances where the practitioner considers that there is a risk to health or safety. Whatever action practitioners take that may interfere with a person’s human rights must be proportionate.
Medical treatment decisions
If a person with the mental capacity to refuse treatment does so, this must be respected by health professionals. If a person lacks capacity to consent to medical treatment it can be given under the MCA the Code of Practice must be followed. The person giving the treatment must reasonably believe the person lacks capacity to consent to the treatment and that what they propose is in the person’s best interests. All possible steps must be taken to try to help the person make a decision for themselves about the action. It is important to check whether the person has made an advance decision to refuse treatment or whether someone else has the legal power to make the decision under a lasting power of attorney or by order of a court.
If a person is thought to be making particularly eccentric decisions, or ones that appear to be out of character for the person, their capacity should be assessed in line with the MCA. If they are assessed as not making the decision with capacity, consideration should be given as to whether it is possible to improve the person’s capacity to decide or – where possible – to delay the need for a decision if they are likely to regain capacity. Interventions such as medical treatment will be lawful where:
- it is necessary to act
- any action is in the best interests of the person
- the action is proportionate to the risk and seriousness of harm to the person
- the action taken is the least restrictive of the person's freedom.
In addition, if restraint is being considered in order to deliver care or treatment in the person’s best interests, that restraint must be necessary to prevent harm to the person and be proportionate to the risk and seriousness of that harm. See SCIE resources on restraint.
Some treatment decisions for a person lacking capacity to consent are so serious that the Court of Protection must be asked to make the decision. Examples may include:
- the proposed withholding or withdrawal of artificial nutrition or hydration from a person in a persistent vegetative state
- a person who lacks capacity to consent is identified as a donor of an organ or bone marrow to another person
- the proposed non-therapeutic sterilisation of a person who lacks capacity to consent (e.g., for contraceptive purposes)
- a dispute about whether a particular treatment will be in a person’s best interests.