The Act can be used only against a public body, therefore HSC organisations, as public bodies, are subject to the Act.
Article 8 of the Convention – the right to respect for private and family life – is the most relevant to the health and social care setting.
The Right to Respect for Private and Family Life contains four rights.
- the right to respect for private life
- the right to respect for family life
- the right to respect for one’s home
- the right to respect for correspondence
Article 8 is not an absolute right, in that the Act makes provision for interference with the rights (see below).
It does, however, impact on subject access requests, consent, confidentiality and disclosure issues.
The right to respect for private life
The current approach is that the right to respect for private life includes an obligation on a public body to meet subject access requests.
Denial of access could be interpreted as a breach of Article 8 as it prevents an individual gaining access to information held about him/her.
This reflects the rights of the individual under the Data Protection Act 1998.
Legislation must be read, as far as possible, in a way that is compatible with the Human Rights Act.
The right to respect for private life may also be invoked where treatment information is withheld from the individual.
If an individual consents to treatment but has not been given sufficient information to make a fully informed decision that consent will not be valid.
Arguably, the withholding of information is a breach of the Article 8 right.
The Article 8 right reflects the common law duty of confidentiality in that patient information should only be disclosed with that patient’s consent.
If information is inappropriately disclosed the individual can take legal action for breach against the public body concerned.
Not only must patient information be held confidentially, it must also be held securely. Failure to do so will also breach the right to respect for private life.
The right to respect for family life
This right may also be relevant, in that relatives of the ill often wish to be involved in the decision-making process, and kept informed of progress.
However, this right must be balanced against the patient’s right to confidentiality.
The right to respect for family life becomes even more relevant where the patient is a child or adult who lacks ‘competence’.
Failure to keep the family informed can be seen as an interference with this right, actionable under the Act.
However, in a situation where the child is ‘competent’ and does not wish for information to be shared with their family, the young person’s right to confidentiality is likely to outweigh the right of the family.
Explaining this may bring the professional into conflict with the family, but ultimately the right of the individual to have information held confidentially will outweigh the right of the family.
It may be possible to claim that one’s rights in relation to respect for family life have been breached in an employment context.
An employee under an excessive workload such that it impinges on his/her life outside of the work environment could possibly plead interference with his/her right to respect for family life.
The right to respect for correspondence
Correspondence includes written and telephone communications.
It may be relevant for an individual to assert this right in relation to the monitoring of workplace e-mails.
In particular, if the employee has not been informed that he/she ‘has no reasonable expectation of privacy’ and that workplace monitoring is taking place.
To lessen the risk of being sued under this heading an employer should ensure that:
- the organisation complies with the advice from the Information Commissioner
- all employees are informed of the organisational policy on ‘private’ emails (which should also include the use of the telephone and the internet)
- consistent decisions are taken if policy breaches are discovered
Interference with an Article 8 right
Article 8 rights are qualified rights; this means that in certain circumstances they can be interfered with by the state.
However, this interference must be lawful, for a legitimate social aim and necessary to achieve that aim.
Furthermore, the interference must not be disproportionate to the objective to be achieved.
Legitimate social aims are:
- national security
- protection of public safety
- protection of health or morals
- prevention of crime or disorder
- protection of the economic well-being of the country
- protection of the rights and freedoms of others
The public body will have to weigh up the public interest necessity of breaching an Article 8 right against the rights of the individual.
Records management considerations
Current understanding is that if organisations comply with the provisions of the common law duty of confidence and the Data Protection Act 2018 they will meet the requirements of Article 8.