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The Human Rights Act 1988

The Human Rights Act 1988 (HRA) came into force on 7th October 2000 and is a key part of the Government’s Programme to modernise the constitution.

It incorporated into domestic law the European Convention on Human Rights (ECHR) to which the UK has been committed since 1951. Full details of the Human Rights Act can be found on the Ministry of Justice website www.moj.gov.uk.

The NHS Litigation Authority was commissioned to provide an information service on how Human Rights issues affect healthcare delivery and for relevant questions and answers on the HRA, please refer to:

www.dh.gov.uk

The Act did not confer any new rights but incorporation of the ECHR into domestic law gave people in the UK a right to enforce their existing convention rights and freedoms in the UK courts. As a result there has been a number of cases taken to the European Court in Strasburg where domestic remedies have been exhausted. The Act requires that as far as possible all primary and secondary legislation is read and given effect in a way which is compatible with convention rights. It makes it unlawful for public authorities to act in a way which is incompatible with those rights unless the legislation under which they are operating makes it impossible for them to act differently. Public authorities therefore need always to consider the implication of convention rights in every activity. Public authorities should ensure that they can justify any interference with a convention right which their work gives rise to.

The implication for the NHS is that best practice in the NHS already respects the ECHR since the UK has been signed up to it for over 50 years. Health and Social Care Practice has a potential to affect some of the rights and freedoms in the ECHR, for instance the right to respect for private and family life, the right to life and the right not to be subjected to inhuman and degrading treatment. The significance of the Act is that it has now enabled people to challenge the UK courts for what they consider to be unlawful interference to their rights under Health and Social Care Law Policy Practice and Procedure.

In practice every manager needs to consider whether the activity they manage is in compliance with and respects ECHR rights.

The Ministry of Justice has a wide range of guidance for public authorities. See:

webarchive.nationalarchives.gov.uk/ and;

www.justice.gov.uk/guidance/docs/hr-handbook-public-authorities.pdf.

For guidance on how the Act operates, the NHSLA issues helpful guidance to Health Authorities and Trusts about litigation issues. There is now a dedicated Human Rights Act Information Service (HRAIS) to the NHS and DoH which gives access to a regularly updated database of issues in cases since January 2003. One of the central aims is to minimise the costs to the NHS of obtaining legal advice by providing access direct to a centrally co-ordinated information service. The service publishes a quarterly newsletter and a series of case sheets in key areas of healthcare law such as mental disorder, confidentiality or prison healthcare. See:

www.nhsla.com/HumanRights

Apart from case law, our firm’s experience in employment and general healthcare advice has inevitably encompassed the changes brought about by the Act and decision making in a clinical setting.

Key Contact

John Sheath
Partner

Tel. 01622 776406

Testimonial

John Sheath is a highly experienced healthcare lawyer who regularly acts for NHS trusts, social care partnerships, and a range of other healthcare professionals. Commentators note that “he never sits on the fence and gives clear, helpful and timely advice in a way that is simple to interpret and informs decisions we need to make.”

Chambers UK, 2013, A Client’s Guide to the Legal Profession