Preparing for the Human Rights Act will be the key to avoiding litigation and damaging publicity. Peter Edwards and Peter Marquand report

When the Human Rights Act 1998 comes into force in England and Wales on 2 October, an NHS body that acts in a way that is incompatible with the rights set out in the European Convention on Human Rights will be acting unlawfully.

An injunction or award of damages may well follow and so will bad publicity.

Litigants are likely to add human rights arguments to their claims and there will be some unusual decisions until the UK courts give some guidance on how they will interpret the convention rights. The challenge for the NHS is to identify the areas of most risk for clients and to minimise that risk in three key areas: clinical practice, commissioning and human resources.

Clinical practice Trusts and GPs treating NHS patients will be 'public authorities' for the purposes of the new act.

They will have to act compatibly with the convention and preserve the rights (including the right to life) of those in their care.

As the law stands now, an allegation of clinical negligence can be defended if a responsible body of medical opinion supports the treatment concerned.

Will the new act change this position? It is arguable that, where a patient has died, or there was a real and immediate risk to life, then the test should be whether the patient's clinicians took adequate and appropriate steps to protect the right to life.

Even if this is so, does it mean clinicians would have to meet a higher standard of care than at present?

It seems likely that in most cases, if a responsible body of medical opinion supports the treatment given, that treatment will also be 'adequate and appropriate'.

In any case, doctors treating patients in private hospitals (whose owners are not 'public authorities') would not have to meet this so-called higher standard of care. Similarly, the new test would not apply in circumstances where the right to life was not engaged. Given this inconsistency, it seems doubtful that the Bolam test will be overturned.

However, where the case involves a clinician who has a higher than average complication rate, a claimant may bring a right to life claim instead of, or as well as, a clinical negligence claim.

The trust would then have to prove any steps that it had taken to monitor and deal with the clinician's complication rate.

Recent cases have highlighted the embarrassment that such claims might cause trusts, particularly if they are combined with a claim for breach of the statutory duty of quality introduced by the Health Act 1999.

A second area where the Human Rights Act can be expected to affect clinical practice is that of consent. There is no right to treatment as such but, taken together, the rights in articles 8 (right to respect for privacy), 3 (right not to be subjected to inhuman or degrading treatment) and 9 (freedom of thought) give patients the right to self-determination. This is so, irrespective of the age or other status of the patient (article 14. The right not to be discriminated against).

Any 'do not resuscitate' policy that imposes a blanket ban on resuscitation of patients over a certain age should be urgently reviewed to avoid falling foul of the patient's right to life.

We certainly expect to see a change in the amount of information that clinicians are required to give patients about their treatment, particularly new treatments.

Commissioning

The issue of adequate and appropriate care is also relevant to commissioning of care - that is, how much the NHS is expected to spend to save an individual's life.

As the law currently stands, a health authority is required to allocate its resources bearing in mind the competing needs of its population.

Any policy that is not flexible enough to meet the needs of the new act risks being declared unlawful.

This may mean that, notwithstanding the planned investment for that year, a new technology may have to be made available to a patient in a life threatening situation.

What about where lives are not at stake? Article 12 of the convention guarantees the right for people of marriageable age to form a family. The right in article 14 not to be discriminated against on any ground complements this.

Certainly health authorities who have a blanket ban on fertility treatments should consider a review before October.

However, there is a clear line between anti-convention discrimination and legitimate differentiation. Ideally, any policy which limits spending on fertility treatment (or indeed any other care) should do so the grounds of clinical effectiveness. So, for instance, it is probable that IVF for a woman of 48 will be less effective than that for a woman of 33. Such differentiation could lawfully be built into prioritisation policy.

Human rights will become part of the everyday employer/employee relationship where the employer is an NHS body.

For example, an NHS employee will enjoy the right not to be discriminated against because of sexual orientation.

UK law does not recognise discrimination unless it is based on gender, race or disability. The 'gays in the military' case established that the convention differs.

Similarly, the right to respect for privacy may make the monitoring of personal e-mails without consent unlawful.

Perhaps strangely, private sector employees working on site, even where they were transferred under Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE), will not enjoy these rights.

NHS bodies may need to revise TUPE contracts to secure these rights for staff.

A court or tribunal hearing an employment case must itself make a decision in accordance with convention rights. Article 9 of the convention sets out the right to freedom of thought, conscience and religion. When combined with the article 14 right not to be discriminated against, the result is more extensive than present race discrimination provisions.

What the NHS should do:

Prepare for those areas where you can anticipate most impact (see the box below).

Make sure your staff and contracted providers are aware of the implications for them and the public.

Make a board member responsible for convention compliance. Ask them to audit all future decisions.

Ask your lawyers to update you regularly on relevant European and UK case law which interprets convention rights and how that might affect your organisation.

Document decisions in a way that demonstrates that you have considered the human rights implications. Ask your lawyers to draw up a checklist to help you.

Review and update policies, processes and procedures to ensure they are convention compliant. Policies to prioritise include commissioning plans. Do not resuscitate policies.

Otherwise, ensure that staff follow the present law.

REFERENCES

1 Human Rights Act 1998. Section 6.

2 Bolam v Friern Hospital Management Committee [1957] 1WLR 582 (see also Bolitho v City and Hackney HA [1997] 4 AllER 771).

3 Smith v United Kingdom, Grady v United Kingdom, Beckett v United Kingdom, LustigPrean v United Kingdom (ECHR) [1999] IRLR. 734.

4 Franxhi v Focus Management Consultants Ltd (ET 2101862/98).

5 Transfer of Undertakings (Protection of Employment) Regulations 1981.

Areas most likely to be affected: detention of voluntarily resident mental health patients; conduct of mental health tribunals; consent to treatment cases; refusal of treatment by older children; do not resuscitate policies; standard of care where treatment is novel; standard of residential care; applications for and conduct of emergency closure orders for care homes; decision-making processes at all levels; allocation of resources policies and clinical guidelines (for example, IVF treatment); security arrangements in hospitals; employer/employee relations.

Checklist for decision making: Identify the right: which article is engaged here? Identify a 'legitimate aim': is it set out in the act? Identify legal basis: where does it say you can do this? Is there a 'pressing social need' for this?

Is the proposed step proportionate to the rights at stake and the legitimate aim? Is there any other option open? Is the step going to discriminate against any individual on any ground?

Relevant convention articles: The right to life (article 2).

The right not to be subjected to inhuman or degrading treatment or punishment (article 3). The right to liberty and security of the person (article 5). The right to a fair and public hearing (article 6).

The right to respect for family and private life, home and correspondence (article 8).

The right to freedom of thought, conscience and religion (article 9). The right to freedom of expression (article 10). The right to freedom of peaceful assembly and to join a trade union (article 11). The right to marry and found a family (article 12).

The right not to be discriminated against on any ground in relation to the enjoyment of convention rights (article 14).