The English Court of Appeal has rejected a claim that a health authority breached Article 8 of the European Convention on Human Rights (right to private and family life) by taking into account clinical but not social factors in a refusal to fund surgery. The claimant was morbidly obese. He had sought State funding for gastric by-pass surgery. He argued that the health authority should have weighed up the effect of withholding funding on his private and family life.
The Court accepted that the Claimant's condition adversely affected his independence, dignity and family life. However they found that Article 8 did not give rise to a positive duty to take into account considerations beyond medical needs. In reaching this conclusion, they noted that the European Court of Human Rights afforded member states a wide margin of appreciation in decisions which involved allocating limited public resources.
This decision comes close on the heels of McDonald, in which the UK Supreme Court rejected an argument (among others) that a local authority violated Article 8 by withdrawing night-time assistance and offering incontinent pads to an elderly woman who was not incontinent. Together they indicate judicial resistance to use of the ECHR as a tool by which to challenge individual decisions which concern resource allocation.
Yet this is not to say that the ECHR has no bearing on decisions relating to socio-economic rights. Breaches of Article 3 (right not to be subjected to inhuman and degrading treatment) have been found in cases where State action or inaction led to extreme poverty or destitution e.g. MSS v. Belgium and Greece; and Limbuela. Breaches of Article 1 Protocol 1 (right to property) have been found where changes in welfare rules impacted disproportionately on an individual e.g. Asmundsson and breaches of Article 14 (right to non-discrimination) where welfare rules differentiated unlawfully between groups e.g. Luczak.
The words of South African former Constitutional judge Albie Sachs come to mind: "...the utilitarian principle of producing the greatest good for the greatest number might well be the starting-off point for all uses of public resources. But the qualitative element, based on respect for the dignity of each and every one of us, should never be left out. This is where the vision of the judiciary, institutionally tunnelled in the direction of respect for human dignity, comes into its own".
Albie Sachs will be speaking at this year's Law Society of England and Wales human rights symposium on Economic Social and Cultural rights, to be held October 21-22 2011. This event will feature various sessions including on international ESC rights (Brazil, India, South Africa); litigating human rights; asylum-seekers; child poverty; healthcare; housing; pensioner poverty; social security. Click here for further details.