LAW SPECIAL REPORT: Now the Human Rights Act 1998 is up and running, David Owens and Susan Thompson wonder what it means in practice for the NHS

October 2000 saw the implementation of the Human Rights Act 1998.

Its main aim was to bring European Convention rights into UK law.

Predictions about its impact varied from 'a massive change across all areas of public life' to 'no change - We have been bound by it indirectly for 50 years'.

Certainly, media attention tended towards major changes.

So what has changed? While much remains the same, there have been some significant shifts. This is reflected in cases that have come to court - and also in some subtle changes in practice to take account of convention rights and to avoid potential challenges.

One thing that did not happen was a rush to court by ordinary citizens seeking to enforce their newly acquired rights. In the first nine months, 149 cases were considered, far fewer than the number heard in Scotland where the act came into force earlier. Judges were said to be anxious to start redefining the new legal culture of enforcing positive rights.

The court made some early pronouncements, and one of its first declarations was that existing law is not compatible with human rights in the field of mental health - pressing the case for reform of the Mental Health Act. It has also battled with the thorny issue of whose rights prevail where there are competing rights, and how far the court should go to protect fundamental freedoms, such as the right to liberty.

An interesting case on resources is that of ex parte K.

Here, a tribunal decided to discharge a patient from detention in hospital subject to certain conditions, one of which was that he should be supervised by a psychiatrist.

No-one could be found, so the patient stayed in hospital.

He argued that this failure interfered with his right to liberty. The court agreed, but said the health authority involved did not have an absolute obligation - it was only required to make reasonable effort to find a psychiatrist, which it had done.

Problems establishing rights become starker when considering the health service's relationship with the voluntary and private sector. Human rights can only be enforced against public bodies. It was thought the courts would give a broad interpretation as to who is a public authority - after all, the act says it includes anyone carrying out functions of a public nature. Yet in the first case to reach court on this point, which involved the Leonard Cheshire Foundation, a disabled services charity, the court decided it was not a public authority.

The foundation had decided to close a home and transfer residents to a different care setting. The residents claimed this breached their human rights under article 8, the right to home and family life.

There were two further potential arguments: one was about the right to life, since it is well known that when vulnerable or elderly people are resettled there is a risk of premature death. The other was breach of article 6 - the right to a fair hearing.

The court's decision that the foundation was not a public body meant none of these arguments could be pursued.

This causes a difficulty. It currently means service users can enforce their human rights against the NHS but not against an independent provider, which is why the case is being appealed. For commissioners, care needs to be taken to ensure protection in contract documents with the independent sector.

For managers, a key impact of the act has been on process and decision-making. Courts will no longer look simply at whether a decision meets the Wednesbury 'reasonableness' test when deciding if actions are justified - it will consider whether the response is proportionate to the aims.

This has meant more activity, for example, in the disciplinary and regulatory field. In a case involving the General Dental Council, the court overturned a decision to strike off a dentist because its decision-making was flawed - denying the dentist a right to a fair hearing.

Such scrutiny will not bypass the healthcare manager in deciding an exceptions policy, commissioning services or delivering care.

In the clinical setting, challenges often involve conflicts between competing rights. The case of Diane Pretty, who is terminally ill with motor neurone disease, and who wants assistance to end her own life, raises issues under article 2, the right to life, competing with article 3, the right not to be subject to inhuman and degrading treatment.

But the act has not driven a coach and horses through clinical practice. Some issues remain unaltered. For example, in the well-publicised case of 'Josie' and 'Mary', the conjoined twins, the right to life was found not to affect the issue - even though the decision meant the inevitable death of the weaker twin.

And the first cases about withdrawal of treatment for persistent vegetative state were decided along the principles set out in Hillsborough victim Tony Bland's case seven years ago.

Decisions about life and death where a patient is unable to competently state his or her wishes remain essentially in the hands of the doctors determining what is or is not in the patient's best interests.

So it has been a quieter year than expected but the act has made a significant impact on changing the legal culture.

Has it changed the culture of the NHS yet? Possibly, in that it brings individual human rights to the fore as never before. At some point, we will probably wonder what all the fuss was about, once the act is firmly embedded in our psyche. l