What is the Scope of a Public Authority’s Positive Duty to Respect Privacy and Family Life?

Condliff, R (On the Application Of) v North Staffordshire Primary Care Trust [2011] EWHC B8 (Admin) (7 April 2011) Summary

The High Court of England and Wales has held that a public health authority did not breach a patient’s right to a private and family life by excluding consideration of non-clinical social factors in deciding not to fund surgery for that patient.

Facts

Primary Care Trusts are a part of the English National Health Service and fund certain medical services. Alexander Condliff is a 62 year old who resides in the catchment area for the North Staffordshire Primary Care Trust (‘PCT’). He developed a series of diabetes related health complications and became morbidly obese. His doctors advised that he undergo laparoscopic gastric bypass surgery (‘the Surgery’).

Mr Condliff did not meet all of the clinical criteria to have the Surgery funded by the PCT. The PCT allows individuals who would ordinarily be ineligible to have surgery funded to apply for funding on an exceptional basis. The PCT’s funding policy includes the following limitation:

Social factors (for example, but not limited to, age, gender, ethnicity, employment status, parental status, marital status, religious/cultural factors) will not be taken into account in determining whether exceptionality has been established’ (the ‘Social Factors Exclusion’)

Mr Condliff applied to have the Surgery funded. The PCT rejected this application on the basis that Mr Condliff could not demonstrate that his case was exceptional under the PCT’s funding policy.

Mr Condliff’s condition subsequently deteriorated and he applied to the PCT to have the decision reconsidered. The PCT decided not to reconsider its original decision on the basis that Mr Condliff has not presented any new evidence demonstrating exceptionality.

Mr Condliff challenged this last decision of the PCT. The main ground of challenge was that the Social Factors Exclusion, and any funding decision made by the PCT in conformity with it, contravened art 8 of the European Convention on Human Rights.

Decision

Under the Human Rights Act 1998 (UK) public authorities must not act in a way which is incompatible with a Convention right. Article 8 provides that:

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

There was no claim that the PCT had “interfered” with the exercise of Mr Condliff’s art 8 rights. Rather Mr Condliff claimed that the “right to respect” imposed a positive obligation on the PCT to put in place a regulatory framework that safeguarded his art 8 rights and that a decision made by the PCT in accordance with the Social Factors Exclusion put it in breach of this obligation. Mr Condliff argued that the PCT was obliged to have specific regard to art 8 factors when considering whether a patient met the exceptionality test, in particular those art 8 factors invoked by a patient that would otherwise not have been considered by the PCT.

Judge Waksman rejected the claim, referring to a line of UK and European Court authority in finding that a public health funding authority will generally be under no positive obligation to consider art 8 factors when determining how to allocate health funding. Judge Waksman cited with approval the rationale provided by Lord Bingham in R v Cambridge Health Authority ex parte B [1995] 1 WLR 898:

I have no doubt that in a perfect world any treatment which a patient, or a patient’s family, sought would be provided if doctors were willing to give it, no matter how much it costs, particularly when a life was potentially at stake.  It would however, in my view, be shutting one’s eyes to the real world … Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. This is not a judgment which the court can make.

Judge Waksman found that the court’s role is generally limited to ensuring decisions by public authorities are lawful and that the court gives public authorities a wide “margin of appreciation” to set funding in the face of competing policy priorities.

Judge Waksman noted European Court case law where positive obligations had been imposed on authorities, but stressed that these were exceptional cases where, absent the imposition of an appropriate decision making framework, a recognised art 8 right would have been jeopardised. For example, in Tysiac v Poland (2007) 22 BHRC 155, the European Court found that the right to respect in Art 8 extended to a positive obligation on the state to put in place an appropriate adjudicative framework for determining a woman’s eligibility for a therapeutic abortion. However, the essence of art 8 is to prevent arbitrary interference by public authorities, not to force them to make particular funding decisions. Judge Waksman found that:

the case before me is not about a framework to safeguard Art 8 rights which is somehow missing. Art 8 rights are not, generally, engaged in healthcare resource allocation given the margin of appreciation afforded to such states when they are making such decisions. The [funding] process [applied to Mr Condliff] is just one further aspect of such decision-making.

Judge Waksman held further that, even if the PCT was under a positive obligation to give effect to art 8 rights, the Social Factors Exclusion represented a fair balance between the individual seeking treatment under the policy and the medical requirements of the community as a whole.

Relevance to the Victorian Charter

The corresponding right to art 8 under the Victorian Charter is s 13(a), which provides that a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with. As Bell J noted in Director of Housing v Sudi (Residential Tenancies) [2010] VCAT 328:

The difference [between article 8(1) and section 13] is that article 8(1) is expressed in terms of a ‘right to respect’, which has a positive connotation. Section 13 is expressed in terms of the negative right against unlawful and arbitrary interference.

Run under the Victorian Charter, this case would have encountered the additional hurdle of characterising the decision and policy framework as ‘interference’. In Condliff it was common ground that the PCT’s decision could not be characterised as such.

On this line of authority there would be appear to be little scope to employ s 13(1) to impose a positive funding obligation on a public authority.

The decision is at http://www.bailii.org/ew/cases/EWHC/Admin/2011/B8.html.

Michael Griffith is on secondment to the Human Rights Law Centre from Mallesons Stephen Jaques