Archive for April, 2011

An interesting recent case

There have been a number of legal applications made claiming infringement of  human rights relating to healthcare. Many relate to hugely difficult issues such as the right to refuse treatment, dignity relating to terminal illness and such like. The case described below centres on another important area, allocation of limited resources.

There are increasing issues in the western world generally regarding obesity and an increasing number of overweight people, many of whom have tried repeatedly to lose weight by dieting,  but who are now seeking medical intervention such as gastric band treatments. So, how to determine who should be entitled to such treatment on the NHS and with what criteria ?

In this case, the complainant, who was seriously overweight but below the relevant Primary Care Trust’s threshold for treatment and therefore was refused such treatment, claimed that his human rights had been breached because the PCT had a policy of excluding social factors in deciding whether there were exceptional circumstances such that a person outside of the physical criteria should get the treatment.

The application was rejected, primarily because in this extremely difficult area of legal rights generally and human rights in particular, the courts have sidestepped the issue under article 8  by stating it shouldn’t apply to medical resources on the basis that article 8 places no positive obligations to provide treatment.  Consequently, whist human rights are often invoked in relation to medical issues under article 2, such as the right to life, the courts have been very slow to reduce the amount of discretion generally available to health authorities in the very difficult area of allocating finite resources.