Summary

This chapter examines the ethical and legal repercussions of human rights legislation. The current and future potential impact on health and social care of the enshrining of the European Convention for the Protection of Human Rights and Fundamental Freedoms into British law is explored by situating the analysis within the international perspective on human rights and the work of the World Health Organisation. An ethical critique of individual rights such as the right to the highest attainable standard of health, rights to life, liberty and privacy and the right not to be subjected to degrading or inhuman treatment, among others, will be carried out by reference to existing British, European and international case law. The impact of the Freedom of Information Act is discussed.

Rights in health and social care

Annas's (1992, p 5) argument favouring patient rights is as applicable to social care as health care: “the concept of using patient rights to make service to the individual patient the core of health care is crucial to any humane and responsive health care system”. Corporate governance re-frames service delivery in the light of user rights. Service users expect information, to have their consent to care sought and their rights to confidentiality respected. The envisioning of health and social services users as active participants with an armoury of rights challenges those service providers whose ethos remains grounded on a tradition of benevolence and altruism.

Rights-based activism has been central in improving health and social care in western countries but barriers to receiving health and social care remain: health care is rationed, drugs are restricted and welfare supplicants means-tested, scrutinised and stigmatised. Individuals asserting rights (to treatment, to welfare, to die) increasingly resort to the courts. Moral rights may be re-framed as legal rights but traditional citizenship values are threatened.

Human rights legislation seeks to define parameters between the interests of the individual and the state. In health care decision making, countervailing state interests against individual autonomy include “the preservation of life, the prevention of suicide, the protection of third parties and the maintenance of the ethical integrity of the medical profession … [because of] … the state's power to protect the health, safety and welfare of its citizens” (Forster and Flamm, 2000, p 143).