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  • The Human Rights Act 1998

    Topics:
    • Good management, good records, 
    • Legal and professional obligations

    The Act became part of UK law on 2 October 2000. It does not contain new rights. It incorporates the European Convention on Human Rights into UK law, allowing an individual to assert their Convention rights in UK courts and tribunals, rather than at the European Court in Strasbourg.

    The Act

    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.

    These are:

    • 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 Human Rights Act 1998 is available on the legislation.gov.uk website

    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.

    Related content

    • Administrative law
    • Blood Safety and Quality Regulations 2005 (as amended)
    • Completed Equality Screenings
    • Human Fertilisation and Embryology Act 2008
    • Police Act 1997
    • Public Health Act (Northern Ireland) 1967
    • The Access to Health Records (Northern Ireland) Order 1993
    • The Access to Personal Files and Medical Reports (Northern Ireland) Order 1991
    • The Adoption Agencies Regulations (Northern Ireland) 1989
    • The Census (Confidentiality) (Northern Ireland) Order 1991
    • The Civil Evidence (Northern Ireland) Order 1997
    • The Common Law Duty of Confidentiality
    • The Computer Misuse Act 1990
    • The Congenital Disabilities (Civil Liability) Act 1976
    • The Consumer Protection (Northern Ireland) Order 1987
    • The Control of Substances Hazardous to Health Regulations (Northern Ireland) (COSHH) 2003
    • The Copyright, Designs and Patents Act 1988
    • The Electronic Communications Act 2000
    • The Environmental Information Regulations 2004
    • The Foster Placement (Children) Regulations (Northern Ireland) 1996
    • The Freedom of Information Act (FOIA) 2000
    • The Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) (No. 2) Order 2005
    • The Gender Recognition Act 2004
    • The Health and Personal Social Services (General Medical Services Contracts), Regulations (Northern Ireland) 2004
    • The Health and Personal Social Services, General Dental Services (Amendment) Regulations (Northern Ireland) 2008
    • The Health and Safety at Work (Northern Ireland) Order 1978
    • The High-activity Sealed Radioactive Sources and Orphan Sources Regulations 2005
    • The Limitation (Northern Ireland) Order 1989
    • The Privacy and Electronic Communications (EC Directive) Regulations 2003
    • The Public Interest Disclosure (Northern Ireland) Order 1998
    • The Public Records Act (Northern Ireland) 1923
    • The Sexual Offences (Amendment) Act 1992
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