Human Rights Act 1998

Why do I need to know about human rights?

  • Human rights law, specifically the right to respect for private life, is one of the ways (alongside the Data Protection Act and the common law of confidentiality) by which a use of patient data might be found to be unlawful.  If a proposed research use of a patient’s data is different from the uses to which a patient agreed, the research could be seen as failing to respect her/his privacy. 

  • However this does not automatically mean that his/her right has been illegally infringed, because her/his personal interest in privacy must be weighed against, amongst other things, a public interest in the research.  So you need to know that, while unconsented use of patient identifiable data might risk infringing the right to respect for private life, a strong case for a public interest in the research plus a clear commitment to protecting the confidentiality of this patient data while doing the research could mean that this is a lawful use.

Background

The effect of the Human Rights Act 1998 (HRA) is that the fundamental rights and freedoms guaranteed with the European Convention on Human Rights (ECHR) have become part of domestic law and can be enforced in courts by anyone who claims to have had their rights infringed.  The Act applies to all public bodies as well as to organisations in the private sector in so far as they carry out functions of a public nature.

The key aspects of the HRA are that:

  • All courts and tribunals are required to take account of the relevant decisions of the European Court of Human Rights (s2).
  • All legislation must be interpreted so far as is possible to be compatible with ECHR (s3).
  • Higher courts can make a ‘declaration of incompatibility; in respect of primary legislation which is incompatible with ECHR (s4).
  • It is unlawful for a public body to act in a way that is incompatible with ECHR (s6).

Article 8- ‘Right to respect for private and family life’

Article 8 of ECHR is particularly important in the context of research involving the secondary use of health data. It provides:

'8.1. Everyone has the right to respect for his private and family life, his home and his correspondence.

8.2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'

The scope of article 8 is very broad and covers the collection, use and exchange of personal data. In determining whether article 8 is 'engaged' (i.e. is a relevant concern in a particular instance)  it is necessary to take into account not only the content of the data, but also the use to which it is anticipated that the data will be put.

Article 8 is not however an absolute right. As you will see in article 8.2 above, the right is 'qualified' (i.e. it can be balanced against other competing values) in that it allows a public authority to interfere where that interference is (1) in accordance with the law, (2) in pursuit of a legitimate aim, and (3) necessary in a democratic society. Essentially article 8.2 requires a determination as to whether there is a competing public interest which justifies any departure from article 8.1. In addition, you must remember that any information disclosure, even if justified under article 8.2, must also comply with other legal obligations, such as those under the Data Protection Act 1998.

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