It has always been fashionable to talk about rights in health care. The word ‘right’ has impact, it is a forceful word and in everyday language bears a simple, understandable meaning. When we use the word, we are asking for an entitlement to something and an obligation, a duty on others to provide it. In the context of the NHS, the implication is that the Government, through the NHS, has a duty to provide me with this or that treatment resource – that I have a right to it, and the NHS an obligation to provide it.
However, when we look at all this 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 lose relevance. The NHS cannot treat everyone and we cannot demand everything from it. There are absolute, qualified, and conditional rights and duties. Matters are much more complicated and nuanced. Nurses, doctors, and the NHS as a whole inevitably have to make tough decisions, which some would argue impinge on their rights. Budgets have to be balanced in terms of staffing and treatments; priorities are set and rationalised. In a sense it's all a question of balance.
The law
In the legal literature the subject of rights is a hotly debated one. Many legal theorists in a subject area called jurisprudence and elsewhere have debated the matter. It is a useful exercise to look at some of these texts to determine whether this sort of rights discourse is useful when considering patient safety matters. Farrell and Dove (2023: 27–28) discussed interests and rights:
‘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…’
Herring (2022) discussed what rights are relevant in medical law, with 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, one considering the good of society. This covers points raised by Wall (1995) and King (2008) regarding NHS resource allocation and the high degree of polycentricity in making NHS resource allocation decisions. A polycentric decision is one that involves:
‘… a large and complicated web of interdependent relationships such that a change to one factor produces an incalculable series of changes to other factors.’
King's (2008) discussion of polycentricism in decision-making, based on interdependencies in health care and the difficulties adjudicating such matters, is an interesting perspective to draw on when discussing rights.
Rights in a healthcare context
To talk of rights does seem to mask the reality of how our NHS works and the challenges encountered by the system. Matters are much more complicated than just saying patients have rights and nurses, doctors, and others have duties. We need to look into the background more, considering interests and taking a more holistic view of matters. We should not see rights just as trump cards, (Farrell and Dove, 2023).
In this column we discuss two reports, the patient safety rights charter from the World Health Organization (WHO) (2024) and the British Medical Association's ‘Health and human rights in the new world (dis)order’ (Sheather and Brown, 2022). Both provide excellent perspectives on health rights issues.
Patient safety rights charter
WHO has been involved with several patient safety initiatives over the years and produced some excellent reports. In the introduction to the recently published Patient Safety Rights Charter (WHO, 2024) it is stated that unsafe care globally results in harm to 1 in every 10 patients and results in more than 3 million deaths annually, and that 50% of this harm is preventable. WHO (2024) outlines patient rights in the safety context and promotes the upholding of these. It also supports stakeholders in developing policies, laws and regulations and health governance regulatory mechanisms. There is a lot of useful information and thinking – a discussion of patient safety and human rights, right to health, right to dignity, right to privacy and so on.
‘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.’
Ten patient safety rights are identified:
- Right to timely, effective, and appropriate care
- Right to safe healthcare processes and practices
- Right to qualified and competent health workers
- Right to safe medical products and their safe and rational use
- Right to safe and secure healthcare facilities
- Right to dignity, respect, non-discrimination, privacy, and confidentiality
- Right to information, education and supported decision-making
- Right to access to medical records
- Right to be heard and fair resolution
- Right to patient and family engagement.
It is stated in the report that these rights recognise that patient safety is impacted by multiple factors such as health workforce management, dignity, respect and so on. Socioeconomic, environment and other factors are also relevant considerations. The broader context of the determinants of health have been taken into account in drafting these rights. Under each right there is a detailed discussion of what it is and how it should be guaranteed. The discussion is clear and well-reasoned.
There is a call for adoption by countries and stakeholders of the patient safety rights charter. Several multifaceted actions are stated, including stakeholder engagement, legislative framework and regulatory mechanisms, and incorporation into policies and professional guidelines. The report recognises that the charter will need to be adapted to national and local contexts – a one size fits all approach is not possible. Some countries will be more advanced in patient safety thinking and practice than others and country resources will differ widely.
The charter is a welcome tool to assist in global and national patient efforts in developing a proper patient safety culture. In the NHS in England, we already have the NHS Constitution (Department for Health and Social Care (DHSC), 2023a) and many patient safety crisis investigation reports, government responses, regulator reports, stakeholder policy reports and so on. By way of example, the NHS Constitution Handbook goes into some detail on the nature of 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.’
DHSC and Public Health England, 2023b
It is further stated that the rights described in the constitution do not necessarily enable individuals to take action themselves in the courts (DHSC, 2023b). It may be necessary for action to be taken by others – such as the Care Quality Commission – who have the power to prosecute.
We have already a well-developed and sophisticated NHS patient safety framework that the WHO charter will be able to dovetail into. It will function to remind NHS staff and patients of what can be recognised as ‘good’, in terms of patient safety rights and duties.
However, the points made above will also apply. The NHS operates as a broad collective in terms of rights. A rights focus is individualistic and may not capture the essential operating nature of the NHS. There are limits to the value of a rights perspective. That said, the concept of rights is so well engrained in thinking that it is very difficult to discount it. It is a useful shorthand. In discussion of concerns about ‘rights’, Herring (2022: 44) pointed out:
‘While these concerns have merits, rights are so commonly referred to in public debates and legal cases it is difficult to avoid the language of rights.’
Health and human rights in the new world (dis)order
This extensive report from the BMA (Sheather and Norcliffe-Brown, 2022) is detailed, clear, and well-researched. It highlights that human rights globally and nationally are under threat and makes several recommendation, with the following aims:
- Reaffirm commitments to global human rights standards in health
- Help strengthen international co-operation among health and human rights organisations to identify violations and coordinate responses
- Ensure the protection and promotion of informed global debate on health issues
- Further strengthen the medical voice in climate change awareness.
Chapters address several issues including the international framework of human rights and the right to health, neoliberalism, inequality and health, migration, ethnicity and health, conflict, human rights and so on.
It provides an excellent reference point for human rights in several key areas, drawing themes together, giving suggestions for accomplishing change and warnings of rights erosion. The afterward considers that health can be seen as the foundation of all human rights:
‘… for what good is, say, the right to liberty if you are immobilised by debilitating pain? A minimum standard of wellbeing, which doctors can contribute to establishing, can help ensure a more cohesive society, where basic needs are met. Human rights can provide the framework for individual, public and global health.’
Sheather and Norcliffe-Brown, 2022:100
Conclusion
The reports discussed here clearly illustrate the benefits of taking a rights approach to global and national health rights issues and the important role that nurses, doctors and others can and do play in advancing them. The terms ‘human rights’ and ‘rights’ have globally recognised currency and meaning. It is also important to remember when discussing these the context within which they exist.
In terms of patient safety rights in the NHS in England it must be recognised that there are a multitude of factors which will impact on the patient experience of care and that the issues are complex ones. Labels such as human rights, rights, interests are key in helping facilitate understanding and are powerful tools. However, labels do have limitations and it is often better to look behind them to the ideas that underpin them to gather true meaning.