UK Human Rights Act will allow challenges to treatment refusals

The Human Rights Act received royal assent in Britain this week, paving the way for patients to challenge the refusal of medical treatments on cost grounds.

For the first time, British people will have the right to enforce a range of civil and political rights in their own courts, sparing them the long trek to the European Court of Human Rights in Strasbourg. The act incorporates into UK law the European Convention on Human Rights, which guarantees a range of rights, including the right to life and to respect for private and family life, and the right to freedom from inhuman and degrading treatment and freedom from arbitrary detention. Implementation of the act is certain to bring issues of NHS resources and healthcare rationing to the fore. Judges’ powers under judicial review—the means by which treatments are challenged—are currently very narrow but will become much wider under the act. Ian Kennedy, professor of health law, ethics, and policy at University College London, suggested that resource allocation in the NHS might be "the first area of collision between the courts and the government" once the act is in force. Patients denied expensive treatments on cost grounds may invoke right to life arguments.

The same day that the act was given royal assent, three transsexuals took North West Lancashire health authority to court to try to force it to fund their sex change operations. The three will not be able to invoke the act, but only because it is not yet in force. Implementation is being delayed, probably until 2000, to allow judges to be trained and public authorities to review the way they carry out their functions. Under the act, transsexuals refused funding for surgery could argue that this breaches their right to respect for private and family life.

Author : Clare Dyer, legal correspondent, BMJ
Ref : BMJ 1998 ;317:1339 (14th November 1998)