The right to life: for ombudsman schemes

Article 2 of the HRA protects your right to life. Nobody, including the Government and public authorities, can try to end your life, or make decisions that put you in danger or that affect your life expectancy.

Complainants may refer to the right it if they believe an organisation has failed or is failing to protect someone’s life – for example, in hospital, custody or an institutionalised setting.

Where it applies

• health services
• social care
• hospitals
• mental health services
• residential and nursing homes
• armed forces
• law enforcement
• police and prison services
• other institutional settings

The right to life places both positive and negative obligations on governments and public authorities. It prevents them from taking life arbitrarily, and requires that they put measures in place to protect lives.

Use of force

Some public authorities, such as prison services, the police and mental health services, may be permitted to use force in certain situations. If they do so, they must show that force was necessary and proportionate. They also have a positive obligation to protect lives, for example, by:

• implementing and monitoring appropriate policies and procedures
• providing training, such as in the use of firearms, tasers, and restraint techniques
• providing adequate staffing
• responding to regulation from inspecting bodies

States must also have laws in place to prevent and punish loss of life through criminal acts, and prevent arbitrary killing by their own security forces.

Case study

• Review of procedures for investigating deaths

Life-saving medical treatment

The right to life places an obligation on public authorities to provide life-saving or life-prolonging medical treatment. But there are exceptions – for example, when the treatment:

• is futile or would lead to further distress and pain in irreversible and worsening conditions Alder Hey Children’s NHS Foundation Trust v Evans 2018
• is withheld because of lack of resources, as long as the decision is non-discriminatory and stands up to scrutiny Rogers v Swindon NHS Primary Care Trust 2006
• has been refused by a patient who may lack the mental capacity to make their own decisions about their care and treatment Ms B v An NHS Hospital Trust 2002
• in the best interests of the patient

Patients who currently have mental capacity do not have the right to insist on particular medical treatment for a time in the future when they may no longer have mental capacity (Burke v General Medical Council 2005).

Case study

• Use of Do Not Attempt Resuscitation (DNAR) notices

Public health

The UN’s 2008 General Comments about the right to life states that governments have a duty to adopt positive measures to protect life, including by:

• reducing infant mortality rates
• increasing life expectancy
• eliminating malnutrition
• preventing epidemics

This is particularly important when considering the rights of groups whose infant mortality or life expectancy rates are worse than the majority population, such as Gypsies, Roma and Travellers, or disabled people.

Measures could require public authorities to:

• undertake vaccination programmes
• provide information about threats to life and epidemics
• control the spread of disease in hospitals and other institutions

Sharing information

Public authorities may have to balance possible breaches of confidentiality against upholding the right to life when they fulfil their duty to share information about health issues and risks.

They must also pay close attention to safeguarding and data sharing procedures when sharing information within or across agencies.

Suicide

The right to life can extend to patients at risk of suicide, and public authorities have a duty to take preventive measures to protect people in their care.

This is illustrated by the case of Rabone v Pennine Care NHS Foundation Trust 2012, which found that the health trust had failed in its duty of care and breached the human rights of a voluntary patient (not ‘sectioned’ under the Mental Health Act 1983) who was allowed to leave hospital and took her own life shortly afterwards.

Assisted suicide

The right to life does not include the right to die.

Several cases have come before UK and international courts arguing that those who assist someone to die should be immune from prosecution, including Pretty v UK 2002 at the European Court of Human Rights. None of them has succeeded. Domestic courts have consistently ruled that it is a matter for Parliament, not the judiciary, to extend the law in this area.

The right to an effective investigation

There is a right to an effective investigation if an individual dies in circumstances involving public authorities. The state must also investigate suspicious deaths and deaths in custody.

An investigation is only deemed to be effective (Jordan v UK 2001) if it is:

• on the initiative of the state
• independent
• able to determine whether any use of force was justified
• able to identify and punish those responsible for the death
• prompt in its response
• open to public scrutiny to ensure accountability
• with the involvement of the family of the deceased so that their interests are safeguarded

Ombudsman schemes that deal with complaints about loss of life are not required to meet these standards for an effective investigation. This is because ombudsmen investigate whether a death was avoidable, but not whether it was lawful.

What to do if this right is relevant to your case

When the right to life is relevant to a complaint, case handlers should:

• take independent professional advice (IPA) to assess the reasonableness of a body’s actions and decisions
• learn what the preferences of the individual are or were
• understand what the best interests of the individual are or were

You should seek to establish:

• the authority’s obligations towards the complainant, such as providing treatment, delaying discharge, and giving information about health risks
• the steps it took to meet those obligations
• the steps it could have but did not take to protect life
• the reasons those steps were not taken, such as resource constraints, and poor clinical judgement or practice according to IPA
• whether it sought and respected the an individual’s wishes, or the parents’ wishes in cases involving children
• how it assessed and decided an individual’s best interests
• how it took action based on an individual’s best interests
• how it balanced any competing rights

Institutions should be able to provide evidence that they have taken the right to life into account in their decisions and actions. If an investigation cannot confirm such evidence, case handlers should make specific comment of it in their report.

Lives at current risk

In instances where a life is at current risk, there is an acute duty on the ombudsman to report its concerns to the relevant authorities in the public interest.

The risk may be clear from the complaint or come to light during the investigation; it may involve the subject of the complaint or others in the same situation or institution.

• Use of Do Not Attempt Resuscitation (DNAR) notices
• Review of the IPCC’s work in investigating deaths