Learning Paediatrics in the School of Hard Knocks

Aaron D'Sa, Cambridge University School of Clinical Medicine

The European Court of Human Rights recently concluded a legal battle that has lasted for the best part of the last decade. The facts of the case (1) were as follows:

A child presented to hospital with bruising on the medial aspect of both legs, with no history of significant trauma. The mother noted that a few days before the child had complained of pain in the genital area after cycling. The paediatrician suspected child abuse. The conclusion that a child’s injuries are the result of abuse is no doubt a difficult one to draw, given the implications for the child and their family. The nurses on duty were given instructions that the parents were not to see their child. This prohibition was subsequently relaxed, and the parents were allowed to visit under supervision. 

Four days later, the opinion of a paediatric dermatologist was sought, and a rare skin disorder predisposing to spontaneous bruising was made. The family sued for damages for breaches of their human rights, and the case is a good illustration of how the Human Rights Act is used in medico-legal cases, not least because of the sheer number of alleged infringements.

The Human Rights Act

The Human Rights Act (HRA) came into force in October 2000. The actual content of the rights was drafted in Europe in the early 1950’s as the European Convention on Human Rights. Since 1953 European citizens of signatory states – which include the UK – have been able to defend their convention rights. However, the process involved the inconvenience of taking one’s case to the European Court of Human Rights (ECHR) in Strasbourg.

The HRA was the UK Parliament’s attempt to incorporate a selection of the Convention rights into UK law. This means that certain rights, specified in the HRA, can be redressed in UK courts. Having exhausted the remedies available in UK courts, some claimants are given permission to appeal to the European Court of Human Rights; this was the route taken by the family.

Despite continued public criticism of the HRA – the best example of which is David Cameron’s pre-election call for its repeal (2) – it has its advocates. The BMA published a report (3) on the likely impact of the HRA soon after it was enacted. Their report concluded that existing medical practice was largely consistent with the principles of the Act, and that its likely effect would be to encourage the best aspects of current medical practice – particularly accountability in decision-making and careful documenting.

As a public body the NHS is obliged to act compatibly with the rights enshrined in the HRA, and as co-ordinators as well as providers of healthcare doctors have an important role in ensuring convention rights are upheld. Two of the rights the family claimed were infringed are discussed below.

Article 3 – Prohibiton of Degrading Treatment 

The parents claimed that the obstruction of their hospital visits to see their child amounted to degrading treatment. The ECHR took a reassuringly pragmatic view of this claim. It argued that Article 3 cannot be relied upon where the distress complained of is an inevitable result of actions which are otherwise compatible with the convention. 

It accepted that the treatment of the parents was degrading and distressing, however this was balanced against the important purpose of the restrictions: to protect the child’s Article 3 rights to freedom from abuse or degrading treatment. The court concluded that it would be impossible for health authorities to protect the Article 3 rights of children if their efforts in this regard were found to infringe the Article 3 rights of the parents. Since protection of the child’s rights was by definition compatible with the Convention on Human Rights, and the parents’ distress flowed directly from that protection, the parents could not rely on Article 3.

The court’s reasoning is of great importance to medical professionals. It prevents the nightmare situation of suspecting parental abuse but being unable to act for fear of incurring a claim by the parents for degrading treatment under the HRA. The court acknowledged the difficult position of the hospital in relation to cases of suspected child abuse, and the judgement makes clear that distress inevitably arising from the Hospital’s protection of its patient’s rights cannot be claimed for under Article 3. 

Article 8 – Right to Respect for Family and Private Life

The parents and child claimed that the prohibitions on the first night, and visiting restrictions thereafter for the duration of the hospital stay, constituted an infringement of their right to respect for their private life. The HRA provides that authorities can infringe Article 8 rights under specified conditions. Namely the infringement must have some basis in law, must have a legitimate aim, and must be necessary in a democratic society. The court found that the Article 8 rights of the family were infringed by the restrictions on visits, and so had to consider whether this infringement was permissible according to the conditions outlined above.

As discussed above, the aim of the restrictions was legitimate (the protection of the child’s rights). However, the Court noted that the paediatrician in charge of the child’s care waited four days before referring the child to a dermatologist. The hospital had the advantage of access to all of the parties to the case, as well as all relevant medical experts. Furthermore the hospital could provide no justification for the delay in seeking an expert opinion. Therefore the court argued that the four day delay could not be necessary in a democratic society. That is to say, the restrictions on visits were prolonged unnecessarily by the delay in seeking a dermatological opinion. Furthermore there was no legal basis for the prohibition – simply suspecting child abuse is insufficient to prevent contact between parents and their child. Therefore the actions of the hospital did constitute an infringement of the parents’ and child’s Article 8 rights, and that infringement did not fulfill the specified conditions to be a lawful infringement.

Future of the HRA

The case is of enormous importance for healthcare professionals, because it highlights the legal and social significance of making an accusation of abuse. The Baby P case reported last year shocked the public, and has surely placed enormous pressure on all health services not to miss cases of child abuse. However the case outlined above demonstrates that over-diagnosis is similarly fraught with danger. 

The UK was an original signatory of the European Convention on Human Rights in 1953, and reliance on Convention rights has significantly increased following the enactment of the HRA.  The Act is particularly useful for doctors. It supplements the familiar ‘four principles’ approach by providing more tangible and explicit rules, offering a useful framework with which to analyse difficult ethical problems. It will be interesting to see if these merits are sufficient to ensure the Act’s survival for another decade.

Human Rights protected by the Human Rights Act (4)

Article 2: Right to Life
Article 3: Prohibition of Torture and Degrading Treatment
Article 4: Prohibition of Slavery and Forced Labour
Article 5: Right to Liberty and Security

Article 6: Right to a fair trial
Article 7: No Punishment without Law
Article 8: Right to Respect for Private and Family Life
Article 9: Freedom of Thought, Conscience and Religion

Article 10: Freedom of Expression
Article 11: Freedom of Assembly and Association
Article 12: Right to Marry 
Article 14: Prohibition of Discrimination

References: 

1. K v United Kingdom [2010] 2 F.L.R. 451; (2010) 51 E.H.R.R. 14

2. Travis A. Cameron pledges bill to restore British freedoms. The Guardian [Internet]. 2009 Feb 28 [cited 2010 Jan 15].  Available from: http://www.guardian.co.uk/politics/2009/feb/28/conservatives-human-rights

3. Committee on Medical Ethics, British Medical Association. The impact of the Human Rights Act 1998 on medical decision making. London: British Medical Association; 2000.

4. Human Rights Act 1998. London: HMSO