In the current climate of hospital closures, waiting lists and postcode prescribing, those who look to the NHS to meet their basic health needs might be encouraged by the fact that, like other public bodies, it will be subject to the Human Rights Act 1998 (HRA) from 2 October.Unless primary legislation obliges otherwise, NHS bodies must apply European Convention on Human Rights (ECHR) principles in their decision making.

After all, there are few groups in society as vulnerable as the sick and infirm, and many ECHR rights could not be exercised without a basic level of health.However, on its face, the ECHR has little to do with accessing health care or even medical information.

In international law, 'health' is generally grouped with social and economic aspirations that are difficult to enforce.

By contrast, the ECHR's primary concern is with civil and political rights, which are concerned with protecting the individual against state action.There are, of course, a number of ways in which such rights become engaged in the health context.

For example, article 5, the right to liberty and security of the person, will be important to detention under the Mental Health Act 1993.Article 3, the prohibition on inhuman and degrading treatment, will also be relevant in circumstances where a detainee objects to a regime of compulsory treatment.

Similar considerations will apply when doctors seek to provide lifesaving treatment to those who object on philosophical or religious grounds.Article 6, the fair trial guarantee, will impact upon those legal and disciplinary proceedings, such as medical negligence litigation and the General Medical Council's complaints procedure, which are intended to ensure health professionals are, to some extent, accountable for their errors.Similarly, compliance with article 2, the right to life, may broaden the scope of coroners' inquests into suspicious deaths.

Article 2 is also likely to be evoked by anti-abortion campaigners along with article 8, which includes the right to respect for family life, although litigation may be limited by the fact that foetal rights do not extend to legal personhood and that only 'victims' in the ECHR sense have standing to sue under the HRA.Lastly, the right to respect for privacy also contained in article 8 will, through the HRA, add an important statutory buttress to the professional and common law duties of confidence owed by health care professionals to their patients.The main focus of this article, however, is on the extent to which the ECHR may, notwithstanding initial appearances, provide a source of enforceable 'positive' rights, both to treatment and to health information.ACCESS TO TREATMENT AND INFORMATION PRE-INCORPORATIONIt is important to appreciate that the courts have already grappled with many of the issues that are likely to be litigated after incorporation.

Current case law will continue to be relevant, particularly as more recent judgments expressly address the ECHR.For example, in the leading case on rights to health care, R v Cambridge Health Authority ex parte B [1995] 2 All ER 129, Laws J considered the target duty in s.1(3) of the NHS Act 1977 to provide such 'facilities for the care of persons suffering from illness' as the Secretary of State considers 'necessary to meet all reasonable requirements'.

The authority argued that patients such as the applicant, a critically ill ten-year-old girl denied further chemotherapy, could not enforce this duty.However, in granting the application for judicial review, the judge held that the authority's discretion could not be exercised in a way that would infringe the girl's right to life, recognised both in the ECHR and common law, unless it could demonstrate a substantial justification on public interest grounds.

To come to court and 'toll the bell of tight resources' was not enough.The Court of Appeal disagreed.

In the leading judgment, Bingham MR underscored the principle that the courts are ill-equipped to interfere in disputes over effectiveness of treatment or clinical judgement.

As for the allocation of resources, he added: 'Health authorities of all kinds are constantly pressed to make ends meet .

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Difficult and agonising judgements have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients.

That is not a judgment which the court can make.' It would, he continued, 'be totally unrealistic to require the authority to come to the court with its accounts' and demonstrate the effects of funding treatment for one patient upon others.In R v North West Lancashire Health Authority ex parte A, D and G [1999] 2 CCLR 419, the applicants were transsexuals who had been refused funding for gender reassignment.

It emerged that their health authorities had wrongly assessed the nature and seriousness of their illness and effectively applied a blanket policy not to fund treatment.

The refusals were therefore quashed on conventional public law grounds.However, the applicants had also argued that refusal of treatment amounted to inhuman and degrading treatment contrary to article 3 and an interference with their article 8 right to respect for private life.

These arguments were given short shrift by the Court of Appeal, albeit by way of obiter comment.Article 3, said Auld LJ, 'was not designed of circumstances of this sort of case where the challenge is to a health authority's allocation of finite funds between competing demands'.

Even if there had been such a right, it would be qualified by resources.As for article 8, Auld LJ considered this 'imposes no positive obligations to provide treatment'.

Buxton LJ chose not to decide whether a person's sexuality (as opposed to sexual conduct) formed part of their private life, instead finding that refusal to fund treatment was not an 'interference' with any such right.

State inaction, he said, could only amount to interference when it had the conseque nce of one group of individuals interfering with the private life rights of another.The UK courts have also considered the ECHR at least twice in relation to access to personal health information.

In R v Mid Glamorgan Family Health Services Authority ex parte Martin [1995] 1 All ER 356, the Court of Appeal considered whether the common law compelled a health authority to give a patient access to their records in circumstances where the statutory right did not apply.Evans LJ was prepared to adopt the approach that article 8, and in particular the jurisprudence on self-determination as an element of private life, reflected the common law.

The right of access was, however, a qualified one.

Here the applicant would be harmed by disclosure so refusal was justified.This common law right was also relied upon to obtain permission for judicial review in R v Camden MBC ex parte M and another (1999, unreported).

Here, the first applicant sought access to the social services file of the second applicant, her learning-disabled adult daughter.

The case settled with access being given shortly after the permission decision.THE IMPACT OF ECHR INCORPORATIONAlthough the courts' reluctance to interfere in matters of pure medical judgement is unlikely to be affected by incorporation, a number of Strasbourg cases suggest that the principles set out in ex p B and ex p A, D and G will need to be revisited in the not too distant future.In Tanko v Finland (1994, unreported), the European Commission on Human Rights did not exclude the possibility that a 'lack of proper care where someone is suffering from a serious illness' could breach article 3, though found insufficient evidence of risk in that particular case.The European Court of Human Rights returned to this question in D v UK (1997) 24 EHRR 423, finding the applicant's deportation to a country without the medical facilities to treat his condition, in turn exposing him to 'acute mental and physical suffering', would amount to an article 3 breach.

In these circumstances, it was unnecessary to examine his arguments under articles 2 and 8.It is not immediately easy to reconcile the Strasbourg court's approach to article 3's protection with the cautious line taken in ex p A, D and G.

Caring for the seriously ill will always have resource implications, yet nothing was made of this by the Strasbourg court.

On the contrary, the absolute nature of article 3 was stressed as an explanation for why the applicant's conduct on entry and precarious immigration status could not deprive him of protection.Post-incorporation, the target duty in s.3 of the NHS Act 1977 will need to be read in a way that is, as far as possible, compatible with articles 2 and 3.

It is unlikely a case as pressing as ex p B would be decided the same way, especially if limited resources were the only defence available to the health authority.Also debatable are the ex p A, D and G conclusions about the lack of a positive right to medical treatment.

In Association X v UK (1978) 14 DR 31, the Commission acknowledged the need for appropriate public health measures to preserve life, without which article 2 might be robbed of its effectiveness.

X v Ireland (1976) 7 DR 78 raised, but did not answer, the question of whether this obligation extended to the provision of treatment for life-threatening conditions by the state.In Airey v Ireland (1979-90) 2 EHRR 305, the Strasbourg court demonstrated its willingness to hold that resources would have to be made available if the right in question were to be truly effective (in that case holding that the absence of legal aid breached the right to a fair trial).

More adventurous UK judges may follow suit.One possible analysis of ex p A, D and G is that the Court of Appeal implicitly doubted gender reassignment was life preserving, or sufficiently urgent, or that the suffering brought on by its denial would reach the high threshold required for an article 3 breach.

These conclusions sit uneasily with the medical evidence presented, but even if they were correct, what of the article 8 point?On the one hand, the Court of Appeal's position appears somewhat conservative given cases such as Botta v Italy (1998) 26 EHRR 241, where the court held that, in certain circumstances, article 8 would require positive measures by the state to ensure disabled people could develop social relations with others.However, unlike articles 2 and 3, article 8 is qualified.

Post-incorporation, public bodies may seek to justify interferences on the basis, for example, that the 'rights and freedoms of others' or the 'economic well-being of the country' will otherwise be unduly affected.Article 8 will also be critical in relation to health information.

There are a number of situations not covered by the Data Protection Act 1998 where rights of access to personal records are lacking: the situation in ex p M is a good example.

There is also an important line of Strasbourg cases, such as LBC v UK (1999) 27 EHRR 212 and McGinley and Egan v UK (1998) 27 EHRR 1, which suggest a duty to advise individuals of health risks arising out of state activity and provide access to government information about such risks.Historically, access to information rights in the UK has been weak, often only contained in extra-statutory codes of practice.

It remains to be seen whether the Freedom of Information Bill or the Human Rights Act 1998 will prove more fertile ground for developing access rights in future.