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.

Child maintenance update

An increasing number of fathers are going to prison due to missing child maintenance payments. This is a political and practical hot potato – on the one hand, if no action is taken, this send out a message that it is acceptable not to financially support children. On the other hand, if a father is in prison, this removes his ability to pay and possibly in the future and deprives the children of contact with their father.

The figures suggest that the number of fathers imprisoned has tripled over 3 years to the current number of more than 50. In the period from April 2007 to March 2008, 25 people were imprisoned for missed payments and 480 had suspended sentences. The increase is demonstrated by the fact that from April to October 2010 35 parents went to prison and 635 were given suspended sentences: the final tally is expected to be at least 50 and 900 respectively. Apparently, average sentences for debts are 48 days.

There remains a huge underlying problem with collection of payments by the CSA. Since 1993 it has fallen short by a huge £3.8bn in the amount of money it should have collected and the system remains very hit and miss, as evidenced by the fact that the CSA sought to send to prison one father who owes £700 but many  are not pursued adequately or at all despite owing thousands.

The CSA stated that “It is highly unusual for anyone to be sent to prison .. magistrates must be satisfied that a parent has wilfully refused or culpably neglected to meet their financial responsibilities.”

As always, there are few issues where the current Government and Opposition agree, but Human Rights and the degree of intrusion by European law in this area appears to be one area where there is some consensus. Both agree that the European Court of Human Rights (which is often condused with but is separate to the EU Court of Justice) is becoming too powerful and that decisions made in Strasbourg are against the thrust of public opinion nationally. A recent example of this relates to the European ruling that prisioners ought to be entitled to vote.

The suggestion being currnetly mooted in Westminster is to pass a new Bill of Rights to replace the Human Rights Act. The crucial part of such legislation would be to give English common law precedence over anyb decisions made in Strasbourg. We will of course continue to monitor this potentially very significant shift in policy on Human Rights and report further in due course.

What are the basic Human Rights under English law ?

The Human Rights Act 1998 enshrines in English law the fundamental rights and freedoms contained in the European Convention on Human Rights.

Under English law, the following are the main classifications for Human Rights, although there are often unforeseen circumstances where these rights have been applied :-

• the right to life
• freedom from torture and degrading treatment
• freedom from slavery and forced labour
• right to liberty
• right to a fair trial
• respect for private and family life
• freedom of  expression, thought, conscience and religion
• freedom of assembly and association
• peaceful enjoyment of property
• the right to an education
• the right to participate in free elections