The right to respect for private and family life, home and correspondence: for ombudsman schemes

You have a right to live your life privately, and enjoy family relationships, your home and your correspondence without interference from government. It applies to a very wide range of situations, which you can read about on our Article 8 page. Correspondence covers all forms of communication, including letters, phone calls and emails.

The right is qualified, however, so interference may be acceptable under certain circumstances. See also restrictions to this right.

This right is often considered alongside other human rights, particularly the right to be free from inhuman or degrading treatment, which has a higher threshold of severity. If that threshold has not been met, it may be that there has been unlawful interference with the right to private and family life.

It is not restricted to the home or private places, but anywhere there is a legitimate expectation of privacy, including what might normally be considered to be public spaces, according to Peck v UK 2003.

The right has wide-ranging applications, including:

• healthcare and medical treatment
• hospitals
• mental health services
• care and nursing homes
• family matters
• planning decisions, especially affecting the home
• data protection and information issues
• surveillance and CCTV

States must put a legal framework in place to ensure that everyone is free to enjoy the right to private and family, unless there are compelling grounds for interfering with the right. The law itself must be compliant, including any interference allowed for under the law (General Comments No. 16). The right should be interpreted broadly.

Health and social care

Public authorities have a duty to:

• take active steps to prevent breaches
• deter conduct that would lead to a breach
• respond to breaches
• provide information to service users about their rights and the risks to those rights

Provision of care and treatment

The right does not compel health authorities to provide all types of medical treatment and care. The courts have acknowledged that that would place too great a financial burden on governments. But there could be instances where not making care or treatment available could be a breach of the right to private and family life.

In McDonald v UK 2014, for instance, the ECtHR found that a local authority had violated the Article 8 rights of a disabled woman by reducing her care and requiring her to use incontinence pads at night instead of providing a sleep-in care worker. However, it also said the authority had been proportionate and justified in interfering with her rights when it balanced her needs against the other care-users in the community.

Information about treatment

Health authorities must provide all the relevant information about the choice of medical treatment, including the risks of the procedures no matter how small. In Csoma v Romania 2013, the state was found to have violated a woman’s right to private life when doctors failed to obtain informed consent or explain treatment options before a procedure, which resulted in a life-saving hysterectomy that left her unable to bear children.

Tracey v Secretary of State for Health 2014 involved a hospital placing a ‘Do Not Attempt to Resuscitate’ (DNAR) notice without consultation on a terminal cancer patient involved in a car accident. The judgment found her Article 8 rights had been breached. It said authorities should involve patients in potentially life-saving treatment decisions, or provide convincing reasons not to, such as causing physical or psychological suffering and harm.

Forced or covert treatment and forced examination

Even minor interference with a person’s physical integrity or mental health may be a breach of the right if carried out against a person’s will. In Storck v Germany 2005, a woman was repeatedly given medication against her will, which the ECtHR held amounted to a violation of Article 8.

This could include forcing someone to undergo a medical examination. A domestic court which had given a psychiatrist powers to assess an individual’s physical and mental state was found to be in breach of the right by the UN Human Rights Committee. It said that the court’s decision to make the order without seeing or hearing from the individual first, and being without sufficient reason to doubt her capacity, was ‘disproportionate to the end sought’ (M.G. v Germany 2006).

Some treatment against a person’s will or without his or her knowledge may not be in breach of the right, if it is necessary and proportionate to pursing a legitimate aim. For example, a Belgian law which required children to undergo an x-ray to prevent tuberculosis was ruled not to be a breach of the right to private and family life (Acmanne v Belgium 1984).

Protecting public health

Authorities have a positive obligation to protect the right through the implementation of effective and properly enforced legislation. For example, the Romanian government introduced legislation to address the issue of attacks by stray dogs. But when a woman was hospitalised after one such attack, it was found to be in breach of the right because it failed to show any concrete measures to deal with dangerous street dogs or to provide redress for her injuries, (Georgel and Georgeta Stoicescu v Romania 2011).

Provision of facilities for disabled people

The European Court of Human Rights (ECtHR) has not yet ruled in favour of applicants claiming that Article 8 obliges public authorities to provide medical aids for disabled people. For example, in Sentges v The Netherlands 2003, the state was not obliged to provide a robotic arm to a man with muscular dystrophy.

However, in Pentiacova v Moldova 2005, the ECtHR acknowledged that the right is relevant to complaints about public funding to help the mobility and quality of life for people with disabilities, even though it does not guarantee free medical care.

The right may impose a positive duty in some circumstances where there is ‘a direct and immediate link’ between the measure sought and the applicant’s private life. In Marzari v Italy 1999, the applicant had a serious disease and sought appropriate housing, without which there would have been a severe impact on his private life.

In addition to obligations under this right, authorities have duties under the Equality Act 2010 and other domestic legislation to provide reasonable adjustments and other aids.

Assisted suicide

The ECtHR has noted that depriving someone of the possibility to end his or her life when they want, given a medical condition, did interfere with his or her right to private life. But it also said that this interference was necessary because a ban on assisted dying protected vulnerable people, and as such was in response to a ‘pressing social need’ (one of the tests of being ‘necessary in a democratic society’) (Pretty v UK 2002).

Domestic courts have consistently ruled that it is a matter for Parliament, not the judiciary, to extend the law in this area.

Reproductive rights

The right to privacy and family life incorporates the right to respect for decisions to become or not become a parent (Dickson v UK 2007 and Evans v UK 2007). 

The ECtHR has established that unreasonable state interference with a woman’s wish to have her baby at home could violate her right to private and family life. In Ternovszky v Hungary 2010, the court found a violation of the right when a woman was prevented from having a home birth because of the failure of the state to provide legislation to enable doctors to perform them without fear of prosecution.

A court ruled that sterilisation for non-medical reasons was in the best interests of a man with severe learning disabilities. It said sterilisation respected his desire not to have any more children and allowed him to resume a long-term relationship, restoring his independence and autonomy (A NHS Trust v DE 2013).

Institutional settings

Individuals in institutions may be more vulnerable to breaches of rights, so there is an extra level of responsibility on institutions to ensure their policies and practices address this vulnerability appropriately.

Hospitals, mental health services and care homes should make every effort to accommodate the wishes of patients and residents, including choices about dress, food and single-sex wards. Authorities must also allow them to keep contact with their families and establish, develop and maintain relationships with others. This is true for prisoners too, as established in McFeeley v UK 1980 and McCotter v UK 1993. Concerns around an individual’s mental capacity are not sufficient as a reason for imposing choices on them.

The level of choice, autonomy and privacy, however, will not be the same in an institution as at home. It varies ‘according to the nature of the accommodation’ in which an individual lives. For example, a ban on smoking in one’s own home might engage the right, but not the same ban in a high-security hospital (R (N) v Secretary of State for Health 2009). Interference may also be justified on grounds that include health, safety, operational efficiency or lack of resources. While individuals in institutions may experience rights in a different way from others, the obligation on institutions is not any less.

Case studies

• Complaint to a health trust about the care and treatment of an elderly relative
• Use of lap straps as restraints in a care home
• Restrictive practices in a care home
• Use of covert medication
• Use of DNAR notices
• Use of CCTV in health and social care settings

Planning decisions

Planning decisions could impact on the right to private and family life, such as those that subject residents to excessive noise or pollution. In Deés v Hungary 2010 unregulated heavy traffic interfered with the right to home; and in Mileva v Bulgaria 2010 the right was violated when authorities failed to enforce prohibition orders on businesses in adjacent flats that made excessive noise.

As a result, the right should be considered as an integral part of planning decisions, and not just ‘a footnote’; it could be an important consideration when determining the legality of a decision (Lough v First Secretary of State 2004). The planning application process itself is also deemed compatible with the right to a fair hearing.

However, the right to private and family life may have to be balanced with competing interests and rights. For example, a number of cases involving airport noise have been unsuccessful because the economic interest and benefit of maintaining or extending the airport’s operations outweighed the impact on residents (Powell and Rayner v UK 1990 and Hatton v UK 2003). On the other hand, the economic benefits of a waste treatment plant did not outweigh the adverse impact to an individual who suffered severe health problems because of its unlawful gas emissions (López Ostra v Spain 1994).

Gypsies and Travellers

There is a positive obligation on the state to protect the Traveller way of life, as stated in Chapman v UK 2001 and reiterated in Boswell’s application for Judicial Review 2009 (the judgment of which applies to Northern Ireland, but the principle remains important in the rest of the UK).

Information, data and surveillance

While there is no right under the ECHR that guarantees access to public information, the right to private and family life does oblige public authorities to make information of specific importance to your private life available to you. This was the case, for example, for records about an individual’s foster care (Gaskin v UK 1989), and about chemical weapons testing on an army soldier (Roche v UK 2005).

The UN Human Rights Committee states that anyone should have the right to request correction or deletion of incorrect personal information, whether it is held by public authorities, private organisations or individuals. The same applies to unlawfully processed information. States must make this possible through legislation and regulation. (General Comment No. 16)

The right could be engaged on issues concerning criminal records checks for individuals working with children or vulnerable people. Disclosure of cautions or convictions could be in breach of the right if they can be considered to be private. For example, cautions are handed down in private and could be regarded as private from the outset, while convictions are made in public, but arguably become ‘part of a person’s private life’ as they recede into the past. (R (T and another) v Home Secretary 2014)

The right to receive and impart information is an aspect of the right to freedom of expression. Information and data issues are also regulated through the EU’s General Data Protection Regulation and domestic legislation, including the Freedom of Information Act 2000.

Surveillance and crime prevention

Surveillance may interfere with a person’s right to private and family life. Crime prevention is a legitimate aim, but actions must be proportionate. For example, the ECtHR ruled it unlawful for the police to retain DNA samples for people who had their charges dropped or had been acquitted of an offence (S and Marper v UK 2008). The court also stated that section 44 of the Terrorism Act 2000 was too broad in the powers it gave authorities to stop and search individuals to prevent terrorism (Gillan and Quinton v UK 2010). Use of CCTV footage must also be proportionate and regulated.

Employers who monitor staff use of email and social media need to show legitimate reasons, necessity and proportionality. This could involve informing employees about the nature and extent of the monitoring, including whether there is access to the content of their communications (Barbulescu v Romania 2017).

Hacking

High-profile cases involving newspapers hacking phones, and police involvement in this, have also involved the right to private and family life. Domestic courts found that police failures to provide victims with information about hacking amounted to a violation of this right. It was also recognised that the newspapers had breached this right too – although the substantial damages they paid were not brought under human rights law (Claimants v MGN Ltd 2015).

Case studies

• Use of CCTV in health and social care settings
• Enforcement regarding audio recordings in taxis
• Working with police forces on stop and search

Domestic and sexual violence

States have a positive duty to protect individuals from unlawful interference with their private and family life. Failure to do so, including in cases of domestic violence, sexual assault and rape, can be a violation of this right (X and Y v The Netherlands 1985 and MC v Bulgaria 2003).

The ECtHR has said that the right is unlikely to apply each time everyday life is disrupted, ‘but only in the exceptional cases where the State’s failure to adopt measures interferes with that individual’s right to personal development and his or her right to establish and maintain relations with other human beings and the outside world’ (Sentges v The Netherlands 2003).

If the right is relevant to your case, your role is to establish whether there has been an interference with the right, and what regard the organisation in the complaint gave to the right.

What to do if the right has been interfered with

If you think the right has been interfered with, the organisation concerned must show that interference was:

• lawful
• for a legitimate aim
• necessary in a democratic society
• proportionate (there were no less intrusive means available)

Legitimate aims in the legislation include:

• national security
• public safety
• national economic wellbeing
• prevention of crime or disorder
• protection health or morals
• protection of rights and freedoms of others

As these aims are broad, organisations are usually able to assert one of them to justify the interference. If so, you should decide if it is relevant – but your key task is likely to be investigating and commenting on the question of proportionality.

You should see if alternative approaches were available that would have involved less interference and investigate why they were not used.

Proportionality is particularly important if the complainant is from protected or disadvantaged groups, such as disabled people or children. Then you will need to look closely at the impact actions or inactions have had. For example, has the person been denied something available to other individuals? This is more likely to show that due regard has not been given to the right, and possibly indicate discrimination.

You should also show how you have considered the qualifications and limitations of the right when you make your report.

Complaints about health and social care

Aims that health and social care institutions may claim include:

• safety of the individual or others
• protection of health
• operational efficiency
• best use of limited resources or staff

These may be relevant but you will still need to establish relevance and proportionality. UK and European courts have recognised the strain on resources, and are often slower to ask states to justify a failure to take protective measures when resources are scarce.

Complaints about planning decisions

The impact of planning decisions must go beyond inconvenience, loss of amenity and aesthetics. There usually has to be a significant impact on the complainant’s physical or mental health to engage this right.

Human rights considerations should be integral to the process of making planning decisions, and should be documented by planning authorities. Where relevant, you should look for specific evidence on how human rights impacts were considered during the decision-making process.

Consideration of planning applications from Gypsies and Travellers need particular attention, bearing in mind the obligations on states to facilitate the Traveller way of life.

Complaints about information, data and surveillance

You may need to refer complaints or aspects of complaints to the Information Commissioner where appropriate.

You may also need to refer to the right to freedom of expression for issues about sharing and receiving information, and the Freedom of Information Act 2000 which adds further guarantees to the minimum requirements laid down by human rights law.

• Complaint to a health trust about the care and treatment of an elderly relative
• Use of lap straps as restraints in a care home
• Restrictive practices in a care home
• Use of CCTV in health and social care settings
• Enforcement regarding audio recordings in taxis
• Working with police forces on stop and search