John Tingle, Assistant Professor, Birmingham Law School, University of Birmingham
and Angela Eggleton, Teaching Fellow, Birmingham Law School, University of Birmingham
This blog is based on an opinion column recently submitted by the authors to the British Journal of Nursing and a contribution to the Bill of Health, blog of the Petrie-Flom Center at Harvard Law School.
The word “right” has impact, it is a forceful word, and in everyday language bears a simple, understandable meaning. Recently, the World Health Organisation (WHO) have anchored the word to global patient safety development efforts in the form of a Patient Safety Rights Charter.
Patient rights are outlined in the safety context which the Charter promotes. Stakeholders are encouraged to develop suitable policies, laws, regulations, and governance regulatory frameworks to advance these. The Charter states:
“Patient safety represents a tangible manifestation of realizing health-related human rights and is a litmus test of the global commitment towards respecting, protecting and fulfilling those rights” (p.5).
Ten patient safety rights are identified in the Charter:
1.Right to timely, effective, and appropriate care
2.Right to safe health care processes and practices
3.Right to qualified and competent health workers
4.Right to safe medical products and their safe and rational use
5.Right to safe and secure health care facilities
6.Right to dignity, respect, non-discrimination, privacy, and confidentiality
7.Right to information, education, and supported decision-making
8.Right to access to medical records
9.Right to be heard and fair resolution
10.Right to patient and family engagement (pp.5-8)
The determinants of health
The Charter states these rights recognise that patient safety is impacted by multiple factors, such as: health workforce management, dignity, respect, and so on. The broader context of the determinants of health have been considered when drafting these.
There is call for adoption by countries and stakeholders of the Charter. Steps for adoption include: stakeholder engagement, legislative framework, regulatory mechanisms, incorporation into policies, and professional guidelines.
A welcome tool
The Charter is a welcome tool in assisting global and national patient efforts in developing a proper patient safety culture.
NHS England already have a well-developed patient safety infrastructure and an NHS Constitution which takes a rights perspective:
“Rights: A right is a legal entitlement protected by law. The constitution does not create legal rights, but it sets out a number of rights, which include rights conferred explicitly by law and rights derived from legal obligations imposed on NHS bodies and other healthcare providers. The constitution brings together these rights in one place, but it does not create new rights or replace existing rights.”
The Charter in context
When we look at the Charter in the context of the NHS, and its obligations to provide free health care based on need, the size and complexity of its mission, the prism of rights and duties does seem to pale and lose some relevance.
In discussing rights in the NHS, we argue that to make sense of everything there also needs to be a focus on the practical context of health care delivery within it. A rights discourse is useful, but it only takes discussions so far.
Matters are much more complicated and nuanced than saying people have rights in the NHS. Though it is a good starting point, the reality is that in the NHS, doctors, nurses and others have to inevitably make tough unpopular decisions. Some decisions in which individuals would rightly argue offend their rights. In a sense, it’s all a question of balance.
The NHS struggles in patient safety culture development
The NHS has and is struggling to develop a proper patient safety culture. This could be for a myriad number of reasons which are a topic of constant debate. The size and complexity of its operation may be one factor which causes some repetition of patient safety errors and failures to permeate essential safety messages down to its workforce. This does not excuse unsafe care, but in applying the Charter to the NHS, the challenges that the NHS faces and its operating features must be factored for fair and realistic assessment of expectations in meeting Charter rights.
- NHS England is the UK’s largest employer, with NHS Scotland coming in a close second.
- The NHS employs over 1.5 million people across the UK, from doctors and nurses to cleaners and receptionists.
- On average, 45,000 people each day visit major hospital A&E departments in England.
- The NHS ranks as the world’s fifth largest employer, with the US Department of Defence and China’s People Liberation Army, Walmart, and McDonald’s ranking in ahead.
The Charter will be able to dovetail into the NHS health regulation, governance, patient safety framework. It will function to remind NHS staff and patients of what can be recognised as, ‘good,’ in terms of patient safety rights and duties.
The Law
In the legal literature, the subject of rights is a hotly debated one. Farrell and Dove discuss interests and rights stating:
“Unless we are specifically referring to specific protections under human rights law, talking about interests rather than rights can often be more straightforward and illuminating. It allows us to unpack the harms and benefits at stake rather than just wielding talk of rights as a trump card…” (pp27-28).
Herring discusses which rights are relevant in medical law, and has a section on critique, stating that not all are convinced that talk of rights is helpful. A concern noted is that rights encourage an individualistic approach, not say, a good of society one.
King’s discussion of polycentricism of decision-making based on interdependencies in healthcare and the difficulties adjudicating such matters is an interesting perspective to draw on when discussing rights. Such an approach may allow for flexibility in decision making where discretion is afforded. NHS resource allocation and polycentricity in the context of judicial review of health care treatment decisions draws upon the relationship between legality, deference, and adjudication.
The NHS operates as a broad collective in terms of patient rights. A rights focus can be regarded as being individualistic in nature and may not always capture the essential NHS operating nature, its essence.
The BMA (British Medical Association) and Rights Discourse.
The BMA have published a report on health and human rights which explores several interesting perspectives to issues. The BMA’s commitment to human rights is grounded in the idea of responsibilities of medical professionals. The report excavates the idea of rights in healthcare in a ‘new world’ through the lens of ‘dis(order)’, as it speaks to the wider geo-political issues in the information and Anthropocene age. In this context, the report examines the ideas of rights, acknowledging diversity in recognition as rights are touted to being ‘far from being universally realised’ (p29). The progression of realising rights is grounded in the development of international agreements (p29).
The report allows us to examine the WHO’s patient safety’s rights Charter and the NHS’ Constitution in the context of the outlook of this ‘new world’, where the realisation of patient safety rights evolves in a developing global landscape.