The prohibition of torture is set out under Article 3 of the European Convention on Human rights (1950) which requires that:
‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’
Council of Europe, 1950: Article 3
The right guaranteed by Article 3 is set out in one sentence with no qualification or derogation. Article 3 is the only true example of an absolute right in the Convention. Although an absolute right, Article 3 contains three different thresholds:
- Torture
- Inhuman treatment or punishment
- Degrading treatment or punishment.
For Article 3 of the Convention to be engaged one of the three thresholds must be breached.
Torture
Torture consists of deliberate inhuman treatment, causing very serious and cruel suffering. The threshold for torture was reduced in Selmouni v France [1998], when the European Court of Human Rights held for the first time that a sustained beating amounted to torture, not inhuman treatment. Cases that engaged the threshold for torture had previously required the use of mechanical or electrical restraints or punishment. The effect of lowering the threshold for torture is to also lower the threshold for inhuman and degrading treatment. Few patients would claim to have been tortured when receiving health care, but the reduced threshold means that patients now find it easier to argue that the treatment they received, or failed to receive, was inhuman or degrading and engaged Article 3.
Inhuman treatment or punishment
Inhuman treatment or punishment is less severe than torture. It includes less serious physical assaults, inhumane detention conditions and a lack of proper medical care. In Tanko v Finland [1994], the European Commission on Human Rights refused to exclude the possibility that a lack of proper medical care, in a case where someone is suffering from a serious illness, could amount to treatment contrary to Article 3.
In D v United Kingdom [1997], the European Court of Human Rights agreed and held that to deport a man in the advanced stages of AIDS would be a breach of Article 3. Withdrawal of the care, support and treatment that he was currently receiving in the UK would have serious consequences and would expose him to a real risk that he would die in distressing circumstances—and this amounted to inhuman treatment contrary to Article 3.
In the case of ZH v Commissioner of Police of the Metropolis [2013] the Court of Appeal upheld the ruling of the trial judge who found that the restraint of a 16-year-old boy with autism had breached Article 3 because they acted without consulting the child's carers before approaching and touching him. The police officers knew that the child lacked capacity and, despite this, had not acted in his best interests when restraining him for 25 minutes.
Degrading treatment or punishment
Treatment is degrading if it is ill-treatment that is also grossly humiliating. Treatment is capable of being degrading within the meaning of Article 3, whether or not it arouses feelings of fear, anguish or inferiority in the patient. It is enough if judged by the standard of right-thinking bystanders that it would be viewed as humiliating or debasing to the victim, showing a lack of respect for, or diminishing, their human dignity (R (On The Application of Oliver Leslie Burke) (Respondent) v General Medical Council (Appellant) & The Disability Rights Commission & 8 Others (Interveners) [2005]).
If a nurse witnessed the degrading treatment of a patient, then that would engage the patient's rights under Article 3, even if the patient was too ill or incapable to be aware of the degrading treatment themselves.
This was the situation recently considered by the Court of Protection in East Lancashire Hospitals NHS Trust v GH [2021] in which a woman who had suffered an obstructed labour at home and who was refusing admission to hospital lacked capacity in relation to that decision because her agoraphobia, anxiety and depression were preventing her from using or weighing information in deciding whether to agree. In determining what action would be in her best interests, the court acknowledged that any restraint or force used would have to respect the woman's right to be free from inhuman or degrading treatment under the European Convention on Human Rights Article 3. The Court of Protection, taking account of the woman's rights under Article 3, authorised the use of necessary and proportionate measures that could include a deprivation of liberty to ensure the safe management of her pregnancy and delivery.
Necessary and proportionate measures in health care
East Lancashire Hospitals NHS Trust v GH [2021] is an example of a key exception to the threshold of inhuman or degrading treatment because it applied to health care. In Herczegfalvy v Austria [1993], the European Court of Human Rights recognised that it is generally for medical authorities to decide on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients. A measure that is a therapeutic necessity cannot be regarded as inhuman or degrading.
To meet this exception, the court must be satisfied that the medical necessity of the treatment is convincingly shown to exist. The interpretation of the term convincingly shown by the Court of Appeal in R (on the application of N) v M [2002] required that:
- The decision to proceed with treatment had to be in accordance with a respected body of professional opinion as set out in Bolam v Friern HMC [1957] and
- Be in the best interests of the patient.
Both parts of the definition have to be complied with in order to satisfy the burden of proof that the care or treatment is medically necessary.
Inhuman or degrading treatment must, therefore, attain a minimum level of severity if it is to fall within the scope of Article 3. This level depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the patient (T and V v United Kingdom (1999)).
Article 3 concerns fundamental issues of respect, dignity and humanity. It is essential that nurses discharge their obligations under Article 3 by ensuring that patients are cared for with respect even when force or restraint is necessary in the person's best interests. All interventions have to be necessary and proportionate.
A hospital trust apologised after an internal investigation revealed that a patient with dementia was repeatedly restrained by staff on some 19 different occasions over a 3-week period because he was uncooperative with his nursing care. During an attempt to insert a catheter the man was restrained by several members of staff, including security staff, and had a cloth placed over his face. The investigation report noted that a supervisor felt the patient's human rights were being violated but was told there was a clinical need, and it was in the best interests of the patient even though other, more proportionate, measures such as sedation had not been tried (Harman, 2020).
Conclusion
Article 3 of the European Convention on Human Rights (1950) prohibits torture but also includes an absolute prohibition on inhuman degrading treatment or punishment. Where a nurse fails to treat patients with respect, dignity and humanity then such interventions can breach the threshold for inhuman or degrading treatment under Article 3.
It is essential, therefore, that nurses discharge their obligations under Article 3 by ensuring that the care they provide meets the fundamentals of nursing and that, even where the use of force or restraint is necessary in a patient's best interests, the use of such restrictive practices is necessary, proportionate and in keeping with the actions of a respected body of their nursing peers.
KEY POINTS
- Article 3 of the European Convention on Human Rights provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment
- A lack of proper nursing care can amount to treatment contrary to Article 3
- A measure that is a therapeutic necessity cannot be regarded as inhuman or degrading if it is necessary and proportionate