Postcode Prescribing and the Human Rights Act 1998
Authors: Andrew Parsons, Alexandra Johnstone
Journal: Journal of the Royal Society of Medicine (2001)

The Human Rights Act 1998 is one of the most important developments in English Law for many years. The Act, which came into force in October 2000, effectively incorporates the European Convention on Human Rights into English law. Under the new legislation, a public body cannot proceed in a way that is incompatible with any of the 'convention rights' that will now form part of the law; thus health authorities and National Health Service trusts will have to be aware of their responsibilities with regard to human rights. The Act imposes a `positive rights' approach on English law, which had previously acknowledged only `negative rights'—i.e. the rights of individuals not to be subject to interference. We can expect that, increasingly, individuals will demand that public bodies make provision to uphold their human rights; thus greater demands are likely to be made on the resources of all such public authorities. One area particularly relevant to clinical practice is `postcode prescribing'.

Postcode prescribing arises from the decisions of individual NHS health authorities and trusts on whether they can afford to supply a specific drug for a particular condition. Access to a drug can thus depend on where you live. One purpose of the National Institute for Clinical Excellence (NICE) is to make judgments on controversial treatments, which will then be prescribable in all areas or none. The Human Rights Act 1998 will enable individuals to seek to challenge future decisions of health authorities and trusts who refuse to fund drug treatment on the basis of cost. Article 2 provides that `everyone's right to life should be protected by law'; this is an absolute right and, as such, allows no scope for exemptions on grounds such as lack of funds. The Strasbourg Court has stressed that Article 2 does not simply require an authority to refrain from the taking of life but also requires appropriate action to safeguard life. Where a patient who has been refused a drug for reasons of cost takes steps to challenge the decision, he or she can now do so by claiming that the body making the decision has acted in a manner incompatible with Article 2—if the refusal of drug treatment might lead to an earlier death. A patient may also rely on Article 14, which protects against discrimination in the enjoyment of convention rights, to support such a claim. Similarly, the patient might rely upon the Act in connection with a Judicial Review application against the authority or trust when challenging the decision to refuse such drug treatment.

Whilst patients have always been able to challenge funding decisions made by trusts or health authorities, the courts have to date made clear that their role is to determine whether the body has followed the correct procedure and acted reasonably. The courts have emphasized that it is not their role to consider the merits of the decision as to whether treatment should be funded. However, the requirement to interpret the law in accordance with Article 2 (the right to life) may cause the courts to adopt a new approach. They might, for example, be obliged to examine data relating to the efficacy of a drug, particularly where it is claimed to be life-saving. In defence of their decisions health authorities are likely to use the NICE guidelines, and the courts will have to familiarize themselves with the approach of evidence-based medicine.

What weight the courts will give to the `right to life' remains unclear. Will they require the decisions of authorities and trusts to be reviewed only when there is a clear case that the drug in question might improve the patient's health and increase life expectancy, or will they also allow claims where the chances of increasing life expectancy are relatively low? The case of `Child B', in which the Cambridge Health Authority decided to refuse further treatment for a 10-year-old child with leukaemia, illustrates the different approaches that the courts might take. In the original hearing the judge quashed the health authority's decision not to fund the treatment on the grounds that, however slim the chances of the child's survival, the responsibility of the authority was `to do more than toll the bell of tight resources'. It is noteworthy that this judge, hearing the case in 1995 (well before the new Act had been debated for legislation), specifically referred to the European Convention on Human Rights in reaching his judgment. The Court of Appeal took a very different view, holding that the authority could choose to use funds for the benefit of patients in general rather than for the treatment of one particular individual. In the light of the new Act and the positive rights approach, the demands of an individual patient are likely to be greater.

Article 3, which provides that `no-one should be subjected to torture or to inhuman or degrading treatment' might also provide some ammunition for patients who have been denied a drug. The refusal to fund a therapy, particularly where the patient would be able to receive it if located in a different area of the country, can be regarded as `degrading' and thus the body who refuses the treatment might be in breach of the convention right. Again, it should be noted that Article 3 is an absolute right and the authority or trust cannot rely on any exemption.

Under the new human rights legislation patients have gained practical and effective means for challenging decisions in various areas of medical practice. Whilst we cannot be certain at this stage about the manner in which the courts will interpret the Act, there is little doubt that it will have great impact.