Human Rights Day 2015
Human Rights Day this year will specifically focus on the launch of a year-long campaign for the 50th anniversary of the adoption by the United Nations General Assembly of 2 International Covenants: the International Covenant on Economic, Social and Cultural Rights and the Covenant on Civil and Political Rights. Each year on the 10th December, Human Rights Day is devoted to the observing the International Covenants on Human Rights.
The unfortunate reality is that there is still a long way to go in terms of securing just and fair human rights for all.
Human Rights Breach?
A hospital trust in Margate has recently been criticised for placing a "do not resuscitate"
(DNR) order on a patient with Down's Syndrome – stating that his learning difficulties were among the reasons for doing so.
Upon being released from hospital, the patient's DNR note was found by his carers amongst his belongings.
Despite visiting the patient every day, his family were never made aware of the DNR
; there was never any discussion or consultation, and it was only by accident that the order was discovered
Issues tend to arise when it comes to DNR orders and the Human Rights Act – if a person has capacity, not informing them of the decision will most likely violate Article 8 - the right to respect for private life.
If a patient does not have capacity, then the Mental Capacity Act (MCA) 2005
states the decision must be made in their best interests.
The MCA sets out a checklist of things to consider when deciding what's in an individual's best interests and states consulting with others is a vital part of best interest decision-making.
People who should be consulted includes anyone previously named by the person concerned, anyone engaged in caring for them, close relatives, friends or others who take an interest in their welfare, any attorney appointed under a Lasting Power of Attorney
or Enduring Power of Attorney
, and any deputy appointed by the Court of Protection
to make decisions for the person.
The final decision to resuscitate always falls with the patient's doctor; but the family must be consulted before this happens. Doctors have a legal obligation to tell you if they place a DNR order if you have the capacity to understand the implications
This is an especially difficult case as the patient was assumed to not have the capacity, yet neither his family nor carers were informed.
The patient in question was also unable to escalate legal action himself – his brother eventually took the steps to do so; questioning why Down's Syndrome, an inability to swallow, and learning difficulties would stop him being resuscitated.
Initially, East Kent Hospitals NHS Trust offered nothing more than an apology to the patient and his family; though later they admitted having breached his human rights
An Associate Clinical Negligence solicitor for Simpson Millar LLP comments: "To borrow from Lord Justice Ryder in the case of Tracey v Cambridge University Hospital NHS FoundationTrust & Ors: The duty to consult does not depend only on article 8 considerations, it is also a duty at common law. The duty to consult is integral to the procedural obligation to ensure effective respect for the article 8 right, without which the safeguard may become illusory and the interest may not be reflected in the clinical judgment being exercised.
That interest is the autonomy, integrity, dignity and quality of life of the patient.
It is accordingly critical to good patient care. The duty to consult is of course part of a clinical process. That process is individual to each patient albeit that it is informed by good clinical practice."
Worried About Medical Negligence?
If you're worried that the standard of care you have received has not been of a competent nature or you have suffered a physical or mental injury as a direct result of that action or inaction, you could be able to make a claim
In the first instance you may have to follow the NHS complaints procedure
as it may be necessary for you to submit a complaint before pursuing a compensation claim. Simpson Millar can advise you on the best course of action, and help you with the outcome of a complaint – whatever that is. If you think that you or a member of your family is a victim of Medical Negligence, contact us today for a free consultation. Just call us on 0808 129 3320 to speak with one of our specialist Medical Negligence solicitors.