Julian Sheather on why we must retain the Human Rights Act

julian_sheatherWhen we sicken in the UK most of us turn to the NHS for care. The majority of doctors here have also been trained in the NHS. Medicine in the UK is therefore deeply involved with the state. Modern developed states are both powerful and, to an extent, impersonal. They can be an enormous force for the good—think of the contribution of the NHS to our welfare—but when they fail they present two kinds of threat: intrusiveness and negligence. There is a danger that powerful states can strip us of our liberty; they can also fail in their obligations to support and protect us. By taking people into its care, and limiting their ability to provide for themselves, the state accrues obligations—at the very least, to provide for the basics: food, water, safety. Tragically, there have been times where, for complex reasons, this hasn’t happened. Consider also the provision of compulsory treatment under mental health legislation. Uniquely, the state, and the doctors who represent it, can override the competent decision of an adult and, if certain conditions are met, provide treatment in their interests without consent. Fundamental rights are engaged here. 

Modern medicine is also powerful. It can transform our lives. Doctors are aware of this power and seek to use it for the good. But life is complex and concepts of “the good” can be contested. Should we be kept alive when we have lost our capacity for self-awareness? Should a young woman with severe learning disabilities be treated against her will? In addressing these questions, rights and interests need careful identification and adjudication. 

The Human Rights Act received Royal Assent in the UK in 1988. It did not import an alien bill of rights wholesale. In many respects it codified and reinforced existing rights and liberties: our civil and political rights can be traced back to the Assize of Clarendon in 1186, the Magna Carta of 1215, and the English Bill of Rights of 1689. And it is worth remembering what we mean by human rights: they are a set of minimum norms that are designed to protect us from the worst of state abuses. 

It has been nearly thirty years since the Act came into force. It hasn’t transformed medical care. It wasn’t expected to. But it has provided necessary reassurance. It has helped articulate the complex relationship between individuals and the institutions of health. It has helped provide clarity for patients and doctors, defining the extent of individual rights, freedoms and entitlements. It has made clear where the limits of medical beneficence lie—the minimal requirements, if you like, of a good doctor-patient relationship. It has also strengthened the hand of doctors in the exercise of their professional obligations. Good health care is respectful of human rights. 

Although human rights have a long history, the Universal Declaration of Human Rights, adopted on the 10 December 1948, emerged from the horrors of the Second World War and the experience of untrammelled state power. The Declaration set out a core set of rights that all human beings possess, describing a line in the sand beyond which the state must not, without justification, step. Medical engagement in human rights can also be traced back here: in Germany, state-sponsored doctors destroyed human bodies and minds, violating the profession’s deepest moral obligations. 

The Universal Declaration sponsored the development of an international framework of overlapping rights. Even at its best it is frail—victim to realpolitik and the difficulties of enforcement. But its vulnerability is no reason to dispense with it. Recent conflicts in the Middle East have seen the deliberate and sustained targeting of medical facilities, their patients and the staff who work in them. The exercise of violent power without moral restraint is increasingly commonplace.

If we take them seriously, human rights can be transformative. From a frail and elderly patient in an over-stressed and under-funded care home, to doctors bunkered down in war zones, trying to bring relief to the victims of modern warfare: they remind us that all people, in all circumstances are the proper object of moral concern.

Saturday the 10 December was Human Rights Day. It was also 58 years since the signing of the Universal Declaration. Mark Porter, BMA Chair of Council has written to the Prime Minister urging her to retain the Human Rights Act. He also asks a single, simple question to those wishing to repeal it: which of these fundamental rights would you like to be without? 

The past may not be a perfect guide to the future, but it is a good one. In these alarming times we need human rights. Without them, we risk a resurgence of overweening power and the loss of our fundamental freedoms.

Julian Sheather is specialist adviser (ethics and human rights), professionalism and guidance, policy directorate, BMA. The views he expresses in his blog posts are entirely his own.