Medical decision making and the Human Rights Act 1998

At present in the UK, when there is conflict of opinion between relatives and health care professionals regarding the treatment of incompetent patients, the courts generally support the latter over the former. This article examines the potential impact of the Human Rights Act 1998, which incorporates the European Convention on Human Rights into UK law, on this position. The possibility of challenges by relatives to disputed decisions on the grounds of Articles 2,3,8 and 14 is examined in the light of relevant Convention jurisprudence. It concludes that the Act will not necessarily result in relatives' views taking priority over doctors', given that the domestic test of the patient's best interests may not infringe the Convention. However, more account will have to be taken of relatives' views given the requirement for the courts to adopt a rights based analysis and to take a more pro-active role in scrutinising medical decision making.