What term means an act that Cannot be done lawfully regardless of how it is performed?

Article 2 protects your right to life

Article 2 of the Human Rights Act protects your right to life.

This means that nobody, including the Government, can try to end your life. It also means the Government should take appropriate measures to safeguard life by making laws to protect you and, in some circumstances, by taking steps to protect you if your life is at risk.

Public authorities should also consider your right to life when making decisions that might put you in danger or that affect your life expectancy.

If a member of your family dies in circumstances that involve the state, you may have the right to an investigation. The state is also required to investigate suspicious deaths and deaths in custody.

The courts have decided that the right to life does not include a right to die.

Separately, Protocol 13, Article 1 of the Human Rights Act makes the death penalty illegal in the UK.

Are there any restrictions to this right?

Article 2 is often referred to as an ‘absolute right’. These are rights that can never be interfered with by the state. There are situations, however, when it does not apply.

For example, a person’s right to life is not breached if they die when a public authority (such as the police) uses necessary force to:

• stop them carrying out unlawful violence
• make a lawful arrest
• stop them escaping lawful detainment, and
• stop a riot or uprising.

Of course, even in these circumstances, the force used must be essential and strictly proportionate. Force is ‘proportionate’ when it is appropriate and no more than necessary to address the problem concerned. 

The positive obligation on the state to protect a person’s life is not absolute. Due to limited resources, the state might not always be able fulfil this obligation. This could mean, for example, that the state does not have to provide life-saving drugs to everyone in all circumstances.

Using this right – example

A social worker from the domestic violence team in a local authority used human rights arguments to get new accommodation for a woman and her family at risk of serious harm from a violent ex-partner. She based her case on the local authority’s obligation to protect the family’s right to life and the right not to be treated in an inhuman or degrading way.

(Example provided by the British Institute of Human Rights)

What the law says

This text is taken directly from the Human Rights Act.

Article 2: Right to life

1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which the penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

• in defence of any person from unlawful violence
• in order to effect a lawful arrest or to prevent the escape of a person lawfully detained, and
• in action lawfully taken for the purpose of quelling a riot or insurrection.

Note: See Article 1 of Protocol 13 for the wording in the Act that makes the death penalty illegal in the UK.

Example case: Pretty v United Kingdom [2002]

A woman suffering from an incurable degenerative disease wanted to control when and how she died. To avoid an undignified death, she wanted her husband to help her take her life. She sought assurance that he would not be prosecuted, but the European Court of Human Rights found that the right to life does not create a right to choose death rather than life. It meant there was no right to die at the hands of a third person or with the assistance of a public authority.

Case summary taken from Human rights, human lives: a guide to the Human Rights Act for public authorities, which shares examples and legal case studies that show how human rights work in practice.

Common law is not written out in one document like an Act of Parliament. It is a form of law based on previous court cases decided by judges.

Common Law is also referred to as ‘judge-made’ or case law.

The law is applied by reference to those previous cases, so common law is also said to be based on precedent.

The general position is that if information is given in circumstances where it is expected that a duty of confidence applies, that information cannot normally be disclosed without the information provider’s consent.

In practice, this means that all patient/client information, whether held on paper, computer, visually or audio recorded, or held in the memory of the professional, must not normally be disclosed without the consent of the patient/client.

It is irrelevant for example how old the patient/client is, or what the state of his/her mental health is; the duty still applies.

Three circumstances making disclosure of confidential information lawful are:

• where the individual to whom the information relates has consented
• where disclosure is necessary to safeguard the individual, or others, or is in the public interest
• where there is a legal duty to do so, for example a court order

Therefore, under the common law, a health or social care provider wishing to disclose a patient’s/client’s personal information to anyone outside the team providing care should first seek the consent of that patient/client.

Where this is not possible, an organisation may be able to rely on disclosure being in the overriding safeguarding interest of the individual or others or in the public interest.

However, whether a disclosure is in the public interest is not a decision to be taken lightly.

Solid justification is required before individual rights are set aside and specialist or legal advice should be sought before the information is disclosed.

Any decision to disclose should be fully documented.

Disclosures required by court order should be referred to the organisation’s legal advisors as promptly as possible, so that any necessary representations may be made to the court, for example to limit the information requested.

If a disclosure is made which is not permitted under common law the patient/client could possibly bring a legal action not only against the organisation but also against the individual responsible for the breach. 

Records management considerations

All persons involved in the records management function should be aware of their responsibility for maintaining confidentiality of records.

Employees should only have access to those parts of the record required to carry out their role.

Requests for records access by other staff members should be logged and periodically audited.

Particular care should be taken during the transportation of health and social care records outside of the organisational site, for example security envelopes and approved carriers should be used where necessary.

Confidentiality: DoH Code of Practice on Protecting the Confidentiality of Service User Information issued January 2009.

The Confidentiality Code of Practice is a result of a major public consultation that included patients, clients, carers and citizens, the DoH, other health and social care providers, professional bodies and regulators.

The Code offers detailed guidance on:

• protecting confidential information
• informing service users about uses of their personal information
• offering service users appropriate choices about the uses of their personal information
• the circumstances in which confidential information may be used or disclosed

Disclosure after a patient’s death

There are no clear legal obligations of confidentiality that apply to the deceased.

Nevertheless the DoH, Department of Health and the General Medical Council agree there is an ethical obligation requiring that confidentiality obligations continue to apply after death.

The Common Law Duty of Confidentiality arguably applies to deceased patients’ records, as per the Information Tribunal Appeal Number: EA/2006/0010 of 17 Sep 2007 between Pauline Bluck, the Information Commissioner and Epsom & St Helier University NHS Trust and Lewis v Secretary of State for Health [2008] EWHC 2196.