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Wednesday, 4 October, 2000, 10:21 GMT 11:21 UK
NHS gears up for human rights cases
Doctors performing an operation
The Human Rights Act aims to protect our rights, but, as BBC News Online's Maura Thompson reports, it has been awaited with trepidation within the NHS.

With an estimated 15,000 legal cases already outstanding, the NHS does not need an additional flurry of litigation to add to its 300m annual compensation bill.

The first case under the Act began on Thursday 5 Octoberr when families asked the High Court to allow two patients who are in a persistent vegetative state to die.

The case echoes that of Tony Bland, the Hillsborough tragedy victim whose parents fought a protracted legal battle for the right to allow him to die.

Hillsborough victim Tony Bland
Tony Bland: Right to die case
Several articles of the Human Rights Act will inevitably be used by patients to challenge their treatment - or lack of it - by the NHS.

Health organisations have put a lot of work into ensuring that they are compliant with the Act - particularly as they have already been able to anticipate some of the problem areas.

Key articles of the European Convention on Human Rights, included in the Human Rights Act, under which the NHS is likely to be challenged include:

  • The Right to Life (Article two)
  • Inhuman treatment - the right not to be subjected to inhuman or degrading treatment (Article three)
  • The Right to Liberty (Article five)
  • Marriage and the family - the right to marry and found a family (Article 12)

Health lawyers and the courts have had one eye on the Human Rights Act for some time, and rulings in recent cases indicate how cases brought under the new Act are likely to be viewed.

Demands for aggressive treatment

In July this year, for example, a right to life case was brought against an unnamed NHS trust on behalf of the extremely ill "Baby D" who doctors had concluded would be too ill for resuscitation.

The parents demanded more pro-active treatment but the court ruled that the baby should be allowed to die peacefully.

A human egg is fertilised
Artificial insemination: Potential challenge
Nevertheless, Bridgit Dimond, emeritus professor specialising in health issues at the University of Glamorgan, believes that there will be Article Two challenges against non-resuscitation orders - coupled with demands for more aggressive treatment of the seriously ill.

Anticipating these cases, the Department of Health published new resuscitation guidelines in August.

Another thorny area for the NHS is likely to be access to in-vitro fertilisation, where there is huge variation between the proportion of couples who receive NHS-funded treatment across the UK.

Clare Brown, president of the National Infertility Awareness Campaign and executive director of Child, said it was unfortunate that infertile couples may have to turn to the law to get the treatment they need.

"The current situation is very unfair and it is an infringement of their human rights," she said.

Mentally ill

"The treatment is available and they should have access to it. If the Department of Health doesn't make it equally available to all then they should use the law."

The Human Rights Act also looks likely to spark litigation regarding the care of the mentally ill.

As many as 40% of psychiatric unit patients are held under common law rather than the 1983 Mental Health Act.

Patients lie on hospital trolleys
Hospital trollies: Legal challenge?
Families of mentally incapacitated people, such as those with Alzheimer's disease, could argue that detention in hospital without consent is a breach of Article Five.

Other potential problems for the NHS are more difficult to anticipate.

But Prof Dimond believes that patients waiting for 10 hours on a trolley in a hospital corridor could argue that the hospital had breached their right not to suffer inhuman and degrading treatment.

Medical Defence Union solicitor Ian Barker believes there may not be a flood of cases brought on by the introduction of the Human Rights Act, because clinicians are already applying appropriate ethical standards in difficult cases.

But David Mason, senior partner in clinical law firm Capsticks said there was likely to be a number of unexpected court decisions from a small number of judges.

To mark the full introduction of the Human Rights Act into British law, BBC News Online is publishing a series on its impact throughout this week. Come back each day to find out more.

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