1.Introduction

Today we assume that health lawyers are primarily concerned with human rights. Health lawyers typically engage with a range of international and European human rights discourses in questioning the nature and boundaries of the discipline. The right to live, the right to die, the right to decide are all claims which can be seen as underpinned by human rights itself. But to what extent is health law underpinned by fundamental principles of human rights or do they remain simply of rhetorical or idealistic significance? In 1991, in the final chapter of the revised edition of his collection of essays Treat Me Right, Ian Kennedy discusses ‘Patients, Doctors and Human Rights’ and states that:

[t]he question for consideration is whether there is anything to be gained analytically or practically in approaching medical law in terms of human rights. I will suggest that there is and that a number of recent developments in medical law should be seen as involving issues of human rights. I will argue further that if they had been seen in this way they might well have been analysed and even decided differently.I. Kennedy, Treat Me Right: Essays in Medical Law and Ethics (Oxford: Clarendon Press, 1991), 385.

His discussion is part of his attempt to persuade sceptics that medical law (as how at that time the subject now generally conceptualised as Health or Health Care Law) actually exists as a designated field in its own right. He believes that there are ethical themes which run through and underpin medical practice and need to be taken in to account. Kennedy argues that some legal developments are lacking ‘the kind of internal coherence and consistency of principle which an understanding of the underlying themes would produce.’I. Kennedy, Treat Me Right: Essays in Medical Law and Ethics (Oxford: Clarendon Press, 1991), 395. He goes onto say that:

(…) they refer to certain broad overarching legal as well as ethical principles against which any proposed legal measure must be tested and approved. And when I talk of human rights here I would make it clear that I refer not only to those rights set out in international Conventions or set down in the Constitutions or Charters of particular nations but also those inchoate rights which are the products of reasoned moral analysis.I. Kennedy, Treat Me Right: Essays in Medical Law and Ethics (Oxford: Clarendon Press, 1991), 395.

Kennedy’s analysis operates at two separate levels. Firstly, at the empirical level, how human rights actually frame law in practice. Secondly, at the normative level, how human rights should frame law here. In his book Jurisdiction of Medical Law, Kenneth Veitch sets this in context with the broader aspects of Ian Kennedy’s work. As Kennedy argues:

Resort to the language of rights assists in the attempt to develop law which addressees the disequilibrium of power between doctor and patient. To argue that patients have rights ensures that they will be taken seriously as partners in the enterprise of health.I. Kennedy, Treat Me Right: Essays in Medical Law and Ethics (Oxford: Clarendon Press, 1991) and see further K. Veitch, The Jurisdiction of Medical Law (Aldershot: Ashgate, 2007).

Rights give tools to patients. Secondly, as Veitch also argues:

it allows Kennedy to claim that for law location external to medicine where ‘societies’ moral standards and principles can be legitimately delineated and applied to specific problems in the area.I. Kennedy, Treat Me Right: Essays in Medical Law and Ethics (Oxford: Clarendon Press, 1991), 6.

This is because rights go broader than standard legal rights. Veatch comments that what Kennedy is doing is arguing a role for the law including ‘Ascertaining the nature of those ethical principles and inchoate rights by which medical practice should be judged.’K. Veitch, The Jurisdiction of Medical Law (Aldershot: Ashgate, 2007), 20. Finally as Veitch notes Kennedy is claiming the distinct identity of the discipline.K. Veitch, The Jurisdiction of Medical Law (Aldershot: Ashgate, 2007), 20. Kennedy argues that cases needed to break free from the traditional headings of the causes of action: ‘Fact situations are shovelled under the heads of tort, contract or property almost as if by accident.’I. Kennedy, Treat Me Right: Essays in Medical Law and Ethics (Oxford: Clarendon Press, 1991). Again, this is very interesting as of course at the time, Kennedy was writing there was in fact very little attempt to engage with property at all in the context of health law. A notable exception was the work of Paul Matthews. A decade later, following the organ retention scandals this came on the table and still remains a relevant issue today. See e.g. M. Quigley, Selfownership, Property Rights, & the Human Body: A Legal and Philosophical Analysis (Cambridge: Cambridge University Press, 2018).

Herein lies one of the problems for this still young discipline. It remains fundamentally derivative upon a range of distinct areas of law and of the disparate causes of action which consequently flow from this. While Kennedy is calling for that decoupling from its moorings to move towards distinct independence over the decades since he wrote his essay it is still the case that little has really changed, Elizabeth Wicks comments that:

medical law is an academic version of the cuckoo. Where a medico-legal problem arises, medical law utilises the principles and remedy of other branches of law.E. Wicks, Human Rights and Healthcare (Hart Publishing, 2007), 1.

In the same vein, Jonathan Herring sees medical law as

made up of bits from a large number of different branches of law, human rights law, tort law, contract law, property law, family law and public law.J. Herring, Medical Law, 7th edn. (Oxford: Oxford University Press, 2018), 2.

Veitch suggests that Kennedy’s argument that medical law is a subset of human rights law is that because unlike most domestic law, it can be seen to have a sound conceptual framework this means that it can be argued that it is a separate subject. In relation to human rights Veitch says:

its deeper purpose is as Kennedy says to justify the very existence of the subject. The discourse of human rights lends conceptual rigour to medical law and therefore facilitates its claim to its distinctive and deserved identity.K. Veitch, The Jurisdiction of Medical Law (Aldershot: Ashgate, 2007), 21.

Kennedy is here making a huge leap. This is effectively saying that we have conceptual underpinnings and we have a separate subject, one whose framework is that of human rights. This is a particularly bold statement not least in an era where human rights informed debate but did not provide the prospect of recourse to enforcement save through existing European and international human rights law. This commitment to human rights as underpinning the discipline is nonetheless affirmed by Kennedy and Grubb in the third edition of their textbook ‘Medical Law’ in 2000, just when the Human Rights Act 1998 was coming into force.I. Kennedy & A. Grubb, Medical Law, 3rd edn. (London: Butterworths, 2000).

This paper begins by examining what led Kennedy to make his original assertions and whether his original arguments were justifiable at that time. Secondly, in the light of legal developments in domestic English health law over the last thirty years, including those since the Human Rights Act 2000, it asks whether the original premises are met today. The paper begins to reveal some of the different stories presented by the engagement with human rights principles since October 2000 and the different responses they present. Finally, it concludes by asking about the role for Health Law as a subset of human rights law in the future. For the purposes of this paper, the author is using the terminology of ‘Health Law’. As she has previously argued with Tamara Hervey that ‘Medical Law’ is one of the disciplinary predecessors of Health Law as it operates today but the discipline is now ‘Health Law’.See further T.K. Hervey & J.V. McHale, European Health Law: Themes and Implications (Cambridge: Cambridge University Press, 2015), chapter 2.

2.Health Law as Human Rights Law: Different Stories, Different Responses

What was the impact of Human Rights Law on the development of the discipline in English law at the time Kennedy was initially writing? In 1991, there was of course no Human Rights Act. It was not until 1998 that it was passed and not until October 2000 that it came into force. Thus, in assessing the impact of human rights on Health Law in the period up until 2000, it is suggested that three issues must be considered: first, the nature and extent of challenges in the area of health law brought against the UK using the European Convention of Human Rights to the European Court of Human Rights in Strasbourg; Second, references made obiter at domestic level which may prove influential, and third, the extent to which human rights form part of ethical norms through health care professional guidelines, which are then in turn used by the courts to develop legal principles in this area.

As Duncan Matthews notes, it was in the 1970s that Kennedy moved from a stance very much in line with medical paternalism to advocating patient autonomy after his stay in the US.D. Matthews, The Making of British Bioethics (Manchester: Manchester University Press, 2014), 112. However, the use of human rights discourse in domestic law in the UK could be seen as largely rhetorical. Medical law itself emerged in UK law schools in the 1980s.See Margot Brazier’s paper in this special issue. By the late 1980s, the discipline was evolving but the impact of human rights on scholars in medical law was definitely visible. Mental health was perhaps the area where this was most apparent.The late 1970’s were a time of influential ECHR engagement in this area see Winterwerp v the Netherlands [1979] 2 EHRR 387 and see further L.O. Gostin & L. Gable, ‘Human Rights of Persons with Mental Disabilities’, in L.O. Gostin et al. (eds.), Principles of Mental Health Law (Oxford: Oxford University Press, 2010). As Matthew notes:

The most high-profile group in Britain was the National Association for Mental Health, which rebranded itself as MIND in the early 1970s. Guided by the American civil rights lawyer Larry Gostin, MIND assumed a more critical stance vis-à-vis medical authority: exposing professional misconduct, challenging regulatory injustices and campaigning for a ‘rights-based’ approach to mental illness.Duncan Matthew in his article ‘Who Guards the Guardians? Ian Kennedy, Bioethics and the “Ideology of Accountability” in British Medicine’, Social History of Medicine 25(1) (2012), 193.

This, in turn, was extremely influential in framing the reform of the law leading to the Mental Health Act 1983.See also L.O. Gostin, A Human Condition, MIND, 1975 and 1977.

But, while mental health law litigation at the ECHR involving the UK was notable and high profile, the ECHR mental health law cases were not the cases used in Kennedy’s essay to assert that medical law is underpinned by human rights law. The author discusses the case of Re B which concerns the sterilisation of a 17-year-old girl with learning disabilities.Re B. (A Minor) (Wardship: Sterilisation) [1987] 2 All E.R. 206. He also discusses the House of Lords decision in Re F where the House of Lords held that an adult woman could be sterilised when it was in her best interests to do so and held that adults lacking mental capacity could be given treatment when it was in their best interests and this was lawful under the doctrine of necessity.I. Kennedy, Treat Me Right: Essays in Medical Law and Ethics (Oxford: Clarendon Press, 1991). Clearly both these cases involve questions of human rights from an ethical perspective but as Kennedy himself notes:

Both are derived from and seek to apply in a practical form certain general principles of human rights found for example in the European Convention on Human Rights. Sadly no mention was made of the Convention either in Re B or in Re F. You may think this an extraordinary omission. Had the Convention been properly considered it would have been realised that at least Articles 2, 3 and 8 were particularly relevant to the issues before the court.I. Kennedy, Treat Me Right: Essays in Medical Law and Ethics (Oxford: Clarendon Press, 1991), 406.

While Kennedy sees this as a matter of human rights, the judges were not at that time framing the law that way. That is of course to be expected. Re B and Re F were decided many years before the publication of the document ‘Bringing Rights Home’ by the Labour party and still longer before the birth of the Human Rights Act.J. Straw MP & P. Boateng MP, Bringing Rights Home: Labour’s Plans to Incorporate the European Convention on Human Rights into UK Law, December 1996. This document was the precursor of the White Paper and eventual Human Rights Act 1998. But Kennedy says that human rights are normatively – and not empirically – grounded. In fact, some of the cases decided after the first publication of Kennedy’s essay in 1991 contain judicial references to international human rights principles. Take the landmark 1993 decision of the House of Lords in Airedale NHS Trust v BlandAiredale NHS Trust v Bland [1993] 1 All ER 821. about the legality of the withdrawal of artificial nutrition and hydration from an adult lacking mental capacity in a situation where treatment is futile. In the judgements a reference is made to the sanctity of life and Article 2, the right to life under the European Convention of Human Rights which provides an important frame for the case. But human rights are not the cause of action here. Instead, the case was an application for a declaration of legality of the actions sought and it drew upon the ruling of the House of Lords in Re F in 1989.Re F [1990] 2 AC 1 – this case was decided in 1989 but reported in the Appeal Cases in 1990. Laws J also made use of the right to life in his famous first instance judgement in the Child B case.R v Cambridge DHA, ex p B [1995] 1 WLR 898. He quoted Article 2 when saying that the NHS body could do more than ‘toll the bell of tight resources’ in determining whether to fund experimental treatment for Jamie Bowen, the child who was suffering from leukaemia. But while the judicial review action in this case was successful at first instance standard judicial orthodoxy was reinstated after the hearing of the case later the same day in the Court of Appeal.

The development of Codes of Practice by the health professional statutory regulatory bodies such as the General Medical Council and Nursing and Midwifery Council could have potentially helped to recognise the concepts of fundamental human rights. This would have been influential as failure to comply with professional codes of practice could lead to disciplinary proceedings and ultimately to being struck off. The courts had also been prepared to consider professional guidelines in determining the boundaries of professional practice itself, in the area of informed consent, professional practice guidelines in the late 1990’s moved towards a much more patient-centred approach which could be seen in terms of respecting individual patient autonomy.See e.g. in the context of patient confidentiality X v Y [1988] 2 All ER 648; see J.V. McHale, ‘Doctors with AIDS Dilemmas of Confidentiality’, Professional Negligence 4 (1988), 76; W v Egdell [1990] 1 All ER 835 and see also in relation to informed consent the GMC Seeking Patients’ Consent: The Ethical Considerations (1998). But the professional bodies did not make that leap and engage with fundamental human rights in that way.

3.The Impact of the Human Rights Act 1998 on Health Law

By the late 1990s the human rights language was informing Health Law but its actual impact on the development of law at a day-to-day level was limited, with the exception of those cases brought before the European Court of Human Rights. What started to change was that rather simply stating that medical/health law was a sub-set of human rights law, after 1st October 2000 it could be argued that it would inevitably become such a subset simply because the UK had an operational Human Rights Act. But to what extent did this reframe the distinct identity of the discipline? Was it the trigger that transformed Kennedy’s declaratory order into reality? Clearly Health Law is today impacted by Human Rights law directly with the statute and its subsequent judicial interpretation. But does this really mean that health law is now or is becoming a subset of human rights law rather than a subset of every other major cause of action? One of the problems with the legislation itself is the difficulty of utilising it to create distinct severable causes of action. Moreover, even where legislation is incompatible with the provisions of the Act, the legislation does not give the courts any power to strike down legislation. Rather, they are merely able to issue a declaration of incompatibility with the onus being placed upon the Parliament to remedy the situation.Section 4 Human Rights Act 1998.

In beginning, the Human Rights Act had a mixed impact. There were the major test cases like Pretty v DPP concerning a right to die through assisted suicide.R (on the application of Pretty v DPP [2001] 1 All ER 1. Similarly just before the Act came into force in relation to NHS resource allocation, there was the decision of the Court of Appeal in NW Lancashire. However, as we will see below, these did not change the weather. Areas such as abortion and Section 58 of the Offences against the Person Act 1861 which makes it a criminal offence to procure a miscarriage remained unchallenged.

In his review of Christopher Newdick’s book, Who Should We TreatC. Newdick, Who Should We Treat? Rights, Rationing and Resources in the NHS, 2nd edn. (Oxford: Oxford University Press, 2004). (2005), Keith Syrett stated that:

A further ground for believing that the legal framework in this field has yet to reach full maturity is, of course, the potential future impact which human rights legislation might have. It has been observed that, notwithstanding its portrayal in the popular media, the Human Rights Act 1998 to date has resembled Conan Doyle's dog which did not bark in the night, with fewer challenges (and, particularly, fewer successful challenges) than might have been anticipated.Keith Syrett, Medical Law Review 13(3) (2005), 434.

This scepticism was noted by others like Elizabeth Wicks in her review of Mason and McCall Smith’s Law and Medical Ethics.E. Wicks, Human Rights and Healthcare (Hart Publishing, 2007). Of course it can be argued that this should have been expected for several reasons. The Human Rights Act was rooted in the ECHR which wasn’t necessarily going to be good news for litigants, particularly in ethically controversial areas when the margin of appreciation was raised. Furthermore, some of these issues were such that it would have required a seismic change in legal approach. In such a situation it was thus inevitable that the judiciary would leave the matter as one for Parliament to decide.

In order to examine the way in which the Human Rights Act 1998 has impacted on health law in the courtroom we now turn to look at the areas where there has arguably been the most extensive and indeed high profile engagement in Health Law. First, public law challenges to NHS resource allocation decisions. As we saw above, there had been an abortive attempt in the Child B case to frame the law in terms of human rights in the mid-1990s. Just before the Human Rights Act came into force, the Court of Appeal was faced with a challenge to the decision by North West Lancashire to refuse to fund gender reassignment surgery.R v NW Lancashire ex parte A, D and G [2000] 1 WLR 977. See further in relation to the resource allocation cases K. Syrett, Law, Legitimacy and the Rationing of Health Care (Cambridge: Cambridge University Press, 2007). On the judicial review claim itself the litigants succeeded. It was held that the Health Authority had failed to exercise its discretion under the NHS Act 1977 in considering whether treatment should be funded and instead had adopted what effectively was a blanket policy fettering discretion. However, although the Human Rights Act was not yet in force, the Court also examined the impact of Article 3 on the prohibition on torture and inhuman and degrading treatment as well as Article 8 on the right to privacy. The Court of Appeal rejected both claims. It was not prepared to hold that the very high threshold test required under Article 3 had been reached. The claim under Article 8 was also not upheld. It was suggested that the case made here was not sufficiently clear and applicable to be upheld. After North West Lancashire there was a dearth of cases. Ex parte Watts was a case known for its implications for the EU free movement principles and how they applied in the context of the NHS. Mrs Watts sought treatment in France for her arthritic hip with the aim of bypassing NHS waiting lists. At first instance, the Human Rights Act provisions were considered by Munby J but were not determinative.R (on the application of Watts) v Bedford Primary Care Trust and Anor [2003] EWHC 2228 (Admin). It wasn’t until 2011 when the English courts had another opportunity to consider the Human Rights Act implications of a NHS resource allocation case. In Condliff the court rejected the judicial review action brought by Mr Condliff a man who became obese after a reaction to insulin and who sought bariatric surgery. Condliffe argued that the refusal here leaving him to continue to suffer the considerable adverse health and quality of life constituted a violation of Article 8 of the Human Rights Act. Lord Justice Toulson commented that:

The Strasbourg Court has been particularly wary of attempts to establish a positive obligation under article 8 in the area of the provision of state benefits, because questions about how much money should be allocated by the state on competing areas of public expenditure, and how the sums allocated to each area should be applied, are essentially matters which lie in the political domain.R (on the application of Alexander Thomas Condliff) v North Staffordshire PCT [2011] EWCA Civ 910.

This is in line with decisions at ECHR level itself and highlights the challenge of attempting to use a human rights approach in a situation where there are scarce resources. The ECHR rejection of such cases was understandable given that by allowing a claim for one patient the consequence may be that resources are denied to another patient or other groups of patients.Scialaqua v Italy (1998) 26 EHRR 164. Resource allocation decisions in healthcare are typical polycentric decisions. They may involve very high levels of complexity. Thus, attempting to claim a right to health care, a socio-economic human rights claim utilising traditional civil and political human rights as under the Human Rights Act 2000 is inevitably highly problematic in practice. It is in fact only relatively recently at ECHR level where there has been a willingness to engage with and develop the human right to healthcare in the context of emergency medical care.Mehmet Şentürk and Bekir Şentürk v Turkey (2013) 60 EHRR4; Asiye Genç c Turquie (Application No 24109/07), Judgment of 27 January 2015 and see A. Nissen ‘A right to Access Emergency Healthcare. The European Court of Human Rights Pushes the Envelope’, Medical Law Review 26(4) (2018), 693.

The area in which there has been the most traction, the most public and parliamentary engagement and yet still so little real change in practice post the Human Rights Act is that of human rights challenges brought in relation to the right to die. Pretty v DPP was the first challenge brought in the early years of the Human Rights Act claiming that the prohibition on assisted suicide under Section 2(1) of the Suicide Act 1961 was in contravention of the European Convention of Human Rights.R (on the application ofPretty v DPP) [2001] 1 All ER 1 and Pretty v UK (2002) 35 EHRR 1; M. Freeman, ‘Denying Death its Dominion: Thoughts on the Dianne Pretty Case’, Medical Law Review 10(3) (2002), 245. Yet while a plethora of rights from Article 2 to 14 were argued before the domestic courts, the litigation failed. The House of Lords rejected such as challenge in relation to Article 2 on the right to life, Article 3 on the prohibition on torture and inhuman and degrading treatment, Article 8 on the right to privacy, Article 9 on the right to freedom of conscience and belief and Article 14 on the prohibition on discrimination. The court rejected claims that any of these articles were engaged. Furthermore, regarding the qualified rights of Article 8 and Article 14, they indicated that even if they had been engaged, they would have been qualified by reference to broader public policy considerations and the protection of the vulnerable in society. In contrast when the Pretty case reached the ECHR, the court was prepared to find that Articles 8 and 14 were engaged and issues of quality of life can be significant in living and dying decisions. However, the Court took the view following the approach taken by the House of Lords that the domestic courts had discretion to hold that these rights were overridden by the need to safeguard the vulnerable in society.Pretty v UK (2002) 35 EHRR 1.

In Purdy, at the end of the decade, there was a degree of movement to use human rights arguments and for the courts to order the DPP to produce the guidelines on assisted suicide.R (Purdy) v DPP (2009) UKHL 45, see further M. Hirst, ‘Assisted Suicide after Purdy: The Unresolved Issue’, Criminal Law Review 12 (2009), 870; R. Nobles & D. Schiff, ‘Disobedience to Law: The Debbie Purdy Case’, Medical Law Review 73(2) (2010), 295; R. Greasley, ‘R (Purdy) v DPP and the Case for Wilful Blindness’, Oxford Journal of Legal Studies 30(2) (2010), 301. Here the claimant succeeded as the court held that Article 8 was engaged and thus consequently the DPP should publish the guidelines he was using in determining whether to relation to prosecuting persons who assisted others to commit suicide outside the UK.DPP, Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide (2010: updated 2014), https://cps.gov.uk/publications/prosecution/assisted_suicide_policy.html. While in this case Article 8 did have a notable impact, nonetheless essentially this was in relation to the procedural question. It concerned the publication of guidelines, not about an injunction and a radical change to enable assisted dying law.

In the Nicklinson case of 2014, the Supreme Court had an opportunity to consider whether Section 2(1) of the Suicide Act was incompatible with Article 8 of the ECHR.R (on the application of Tony Nicklinson) ex parte DPP [2014] UKSC 38; E. Wicks, ‘The Supreme Court judgment in Nicklinson: one step forward on assisted dying; two steps back on human rights’, Medical Law Review 23(1) (2015), 144. In Nicklinson the Supreme Court moved away from the approach in the House of Lords in Pretty. They confirmed that Article 8 was engaged. However, the Supreme Court itself was split on the approach to take. The majority was not prepared to order a declaration of incompatibility. A group of judges including the current Head of the Supreme Court, Lord Neuberger, would have been prepared to award such a declaration. But, as this matter was under current consideration by the UK Parliament, they held this matter was one which should be left to Parliament to determine. In contrast, a number of judges took an approach much more aligned with that of the earlier judicial decisions that even though Article 8 was engaged, it qualified due to concerns related to safeguarding the vulnerable in society. However, the dissenting judgements of Lady Hale and Lord Kerr were here groundbreaking. They held that the prohibition on assisted suicide was indeed incompatible with the ECHR and would have been prepared to issue a declaration of incompatibility. After Nicklinson attempts by litigants to use human rights as a basis to change the law concerning assisted dying have been unsuccessful. Furthermore, as with abortion, this is an area where at ECHR level the court has allowed a considerable margin of appreciation to Member States and the claimants were unsuccessful in challenging the Supreme Court decision at the ECHR.Nicklinson and Lamb v United Kingdom (Apps 2478/15 and 1787/15), Decision of 23 June 2015 https://hudoc.echr.coe.int/eng-press#: see further E. Wicks ‘Nicklinson and Lamb v United Kingdom: Strasbourg Fails to Assist on Assisted Dying in the UK’, Medical Law Review 24(4) (2016), 633. The rejection of the admissibility hearing brought at the Supreme Court in the subsequent Conway case bringing a challenge to the right to die has clearly illustrated that it is unlikely that courts will be inclined to develop the law further, at least in the short-term.R (on the application of Conway) (Appellant) v Secretary of State for Justice (Respondent) UK Supreme Court 27th November 2018 (Admissability hearing), https://www.supremecourt.uk-/docs/r-on-the-application-of-conway-v-secretary-of-state-forjustice-court-order.pdf and see discussion of the case in relation to the earlier hearing in C. Hobson, ‘Is It Now Institutionally Appropriate for the Courts to Consider Whether the Assisted Dying Ban is Human Rights Compatible? Conway V Secretary of State for Justice’, Medical Law Review 26(3) (2018), 514; see now also further rejections to challenges to the law concerning assisted suicide in R (on the application of Philippe George Newby) v The Secretary of State for Justice [2019] EWHC 3118 (Admin) ECHR and H. McDonald, ‘Right to Die campaigner Paul Lamb fails to overturn ban’, https://www.theguardian.com/society/2019/dec/19/right-to-die-campaigner-paul-lamb-fails-tooverturn-ban?CMP=share_btn_tw. If anything, in fact the judicial approach here appears more cautious overall than that in the Nicklinson decision itself. Given this it appears very unlikley that the UK courts are likely to follow their Canadian counterparts and trigger a radical human rights based reform of the law.See further in relation to the Canadian approach, B. Chann & M. Sommerville, ‘Converting the Right to life to the Right to Physician Assisted Suicide and Euthanasia: An Analysis of Carter v Canada (Att General) Supreme Court of Canada’, Medical Law Review 24 (2) (2016), 143.

In other life and death decisions concerning the withdrawal of treatment in the years post Bland the cases have ultimately been determined on the basis of best interests within the family law jurisdiction and latterly in relation to adults that of the Mental Capacity Act 2005. Initially the Bland decision itself was followed in NHS Trust A v M with the court holding that there was no violation of Article 2 of the ECHR when treatment was withdrawn in the patient’s best interests and the guidelines in the Bland case were complied with as treatment was futile.[2001] Fam 348. Subsequent recent human rights challenges to the decision to withdraw treatment in cases of very young children who suffered from serious illness where further treatment was futile were unsuccessful with the domestic courts, supported by the ECHR. Moreover the courts have held that where human rights claims are brought on behalf of the parents in such a situation, they are not determinative, and that the issue is that of the decision being taken in the best interests of the child themselves.In the Matter of Charlie Gard 19th June 2017 [2017] UKSC,

https://www.supremecourt.uk/cases/docs/charlie-gard-190617.pdf: Gard and Others v the United Kingdom App no 39793/17 (Commission Decision [2017] ECHR 605, 27 June 2017. Re E ( a child) [2018] EWCA Civ; In the Matter of Evans-Permission to Appeal Determination 20th March 2018, https://www.supremecourt.uk/news/permission-to-appeal-determination-in-the-matter-of-alfieevans.html; Evans v Alder Hey Children’s NHS Foundation Trust [2018] EWCA Civ 805; In the matter of Alfie Evans No 2 UK Supreme Court 20th April 2018, https://www.supremecourt.uk/docs/in-the-matter-of-alfieevans-court-order.pdf, see also J. Bridgeman, ‘Gard and Yates v GOSH, the Guardian and the United Kingdom: Reflections on the Legal Process and Legal Principles’, Medical Law International 17 (20170, 285; E. Cave & E. Nottingham, ‘Who Knows Best (Interests)? The Case of Charlie Gard’, Medical Law Review 26(3) (2018), 500; C. Auckland & I. Gould, ‘Defining the Limits of Parental Authority: Charlie Gard, Best Interests and Risk of Significant Harm Threshold’, Law Quarterly Review 134 (2018), 37. Here human rights principles in relation to the UN Convention on the Rights of the Child and Article 8 of the ECHR were referenced when stating the applicable legal principles but this was again not a matter of changing the law but rather can be seen as a gloss on the analysis.

The area of reproductive rights, as with debates in relation to the right to die is one, where it was to be expected that challenges to the operation of existing domestic English law would be brought once the Human Rights Act came into force. There is and never has been a fundamental right to demand access to reproductive technologies in English law. The Human Fertilisation and Embryology Act 1990 – the legislation which regulates this technology – operates through the gatekeeper clause of section 13(5).See further in relation to the scheme for the legal regulation of human reproduction in England, A. Algrahni, Regulating Assisted Reproductive Technologies (Cambridge: Cambridge University Press, 2018). At the core of the legislation is the respect for the welfare of the child once born, Section 13(5) provides that:

A woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for supportive parenting), and of any other child who may be affected by the birth.

But in the very high-profile case of Evans v UK in 2004 there was judicial recognition that reproductive rights were engaged in claims concerning access to reproductive technology treatment.Evans v UK, Case 6339/05 [2006] ECHR, 200. Evans v UK, Grand Chamber, [2007] All ER (D) 109 (10thApr), note the dissenting judgments of Judges Turmen, Tsata-Nikolovska, Spielmann and Ziemele. Here though the case concerned a conflict of rights between those of Natalie Evans who wanted use of her stored embryo and those of her former partner Howard Johnson who opposed such use. The Human Fertilisation and Embryology Act 1990 required that both parties had to give consent before the embryo could be used. In the domestic courts Natalie Evans claim failed.Evans v Amicus Healthcare Ltd [2003] 3 All ER 903; [2004] 3 All ER 1025. Not only was it the case that the embryo did not have separate legal rights under Article 2, while Natalie Evans herself had her Article 8 right were engaged in the context of reproduction, the rights of her former partner under Article 8 not to reproduce were also engaged. She also claimed that she was being discriminated against under Article 14 the prohibition on discrimination as compared with a woman who was able to conceive naturally. Her claim was also rejected at ECHR level. Both in the initial and Grand Chamber hearings also placed considerable weight upon the position of the individual Member State and used the doctrine of the margin of appreciation. While a human rights claim under Article 8 to access artificial insemination services in relation to a couple who had met and married in prison in Dickson was successful this was quite a narrow decision in relation to the interpretation of the Home Office policy and in the decade since it was decided it does not appear to have had further ramifications in relation to the development of reproductive rights.Dickson v UK, Grand Chamber, [2007] ECHR 44362/04. In Blood and Tarbuck v SS for Health it was conceded in the courtroom by the Government that the law was incompatible with the Article 8 of the ECHR by the fact that Diane Blood’s son Liam who was born posthumously couldnot have his father’s name on his birth certificate as the Human Fertilisation and Embryology Act 1990 provided in section 28(6) at that time that such a child was legally fatherless.3 March 2003, unreported. But this while a very important case is essentially a family law case regarding parental identity not a health law decision.

Until recently, abortion has not been a feature of human rights claims in the domestic courts. As with access to reproductive technologies there is no right to demand access to an abortion in English Law. Abortion itself is a matter for the criminal law. Sections 58 and 59 of the Offences Against the Person Act 1861 provide that it is an offence to procure a miscarriage and under Section 1 of the Infant Life Preservation Act 1929 making it an offence to destroy the life of a child capable of being born alive. The Abortion Act itself provides for access to an abortion if two doctors are satisfiedOne doctor can authorise an abortion in an emergency situation. that the provisions of the legislation have been complied with. As with end of life, the decision making on abortion and the rights claimed by parties to the abortion process is an area where the ECHR has afforded a very wide margin of appreciation to Member States in interpreting human rights in this context.See further C. Cosentino, ‘Safe and Legal Abortion: An Emerging Human Right? The Long-lasting Dispute with State Sovereignty in ECHR Jurisprudence’, Human Rights Law Review 15(3) (2015), 569. The first major case in the UK after the Human Rights Act asserting rights in relation to the abortion process was not an action claiming a right to an abortion but a challenge in relation to the application of the conscientious objection provision contained in Section 4 of the Abortion Act 1967 in Greater Glasgow Health Board Doogan and Another.[2014] UKSC 68 see further for a critical view of that decision M. Neal, ‘When conscience isn’t clear: Greater Glasgow Health Board v Doogan and Another’, Medical Law Review 23(4) (2015), 668. While Article 9 has had a chequered and problematic history at ECHR level in terms of litigation in relation to conscientious objection what is striking is how in this case Article 9 plays no major part in the decision at all.Pichon and Sajous v France (App 49853/99), Admissibility decision of 2 October 2001; A. Lamackova, ‘Conscientious Objection in Reproductive Health Care: Analysis of Pichon and Sajous v France’, European Journal of Health Law 15 (2008), 7. See also Council of Europe, Parliamentary Assembly Declaration 1763 (2010) ‘The Right to Conscientious Objection in Lawful Medical Care’ http://assembly.coe.int/main.asp?Link=/documents/adoptedtext/ta10/eres1763.htm. For commentary on this declaration see M. Campbell, ‘Conscientious Objection and the Council of Europe’, Medical Law Review 19(3) (2011), 467; Eweida v United Kingdom (2013) 57 EHRR 8; J. Maher, ‘Eweida and Others: A New Era for Article 9?’, International and Comparative Law Quarterly 63(1) (2014), 213. On the legitimacy of the doctrine of conscientious objection – something on which there is considerable academic division, see R. Dresser, ‘Professionals, Conformity and Conscience’, Hastings Center Report 35(6) (2005), 9; J. Savulescu, ‘Conscientious objection in medicine’, British Medical Journal 332 (2006) 294; M. Magelssen, ‘When Should Conscientious Objection be Accepted?’, Journal of Medical Ethics 38(1) (2012), 18-21; J. Montgomery, ‘Conscientious Objection: Personal and Professional Ethics in the Public Square’, Medical Law Review 23(2) (2015), 200; S. Fovargue & M. Neal, ‘Conscience and Agent-Integrity: A Defence of Conscience-Based Exemptions in the Health Care Context’, Medical Law Review 24(4) (2016), 544. Instead the focus in the case is upon a tight issue of statutory interpretation of section 3. The most notable case however is that concerning Northern Ireland in Re Northern Ireland Human Rights Commission's Application for Judicial Review.[2018] UKSC 27. Here a challenge was brought regarding the abortion law in Northern Ireland, which is a part of the United Kingdom where the Abortion Act 1967 had never been enacted and thus the current law is the criminal law provisions under the Offences Against the Person Act 1861, Infant Life Preservation Act 1929 with and section 25(1) of the Criminal Justice Act (NI) 1945 allowing an exception for abortion where this is likely to cause serious harm to a woman’s life and health.See also B.N. Ghrainne & A. McMahon, ‘Abortion in Northern Ireland and the European Convention on Human Rights: Reflections from the Supreme Court’, International and Comparative Law Quarterly (68)(2) (2019), 477.

Although the Supreme Court would have been prepared to hold that the current position in Northern Ireland was in violation of Article 8 of the ECHR, the claim failed as the Northern Ireland Human Rights Commission was held not to have standing to bring the action. Realistically, while it is devastating for the litigants in these cases, they are not unexpected results. They can be seen as a means of pushing the boundaries to attempt political change. They also inevitably reflect the operation of the margin of appreciation level at ECHR level and the diversity of ethical approaches to many of those issues. There has been no attempt to challenge the Abortion Act itself in that way in the English court although there have been recent attempts to push for decriminalisation itself in the rest of the UK.Diana Johnson’s Bill, October 2018: see BBC News, ‘Abortion Decriminalisation Bill Tabled in the Commons’, https://www.bbc.co.uk/news/uk-politics-45955492. In summer 2019, section 9 of the Northern Ireland (Executive Formation etc.) Act 2019 was passed. This Act, which follows a campaign by Labour MP Stella Creasey, repeals the provisions of the Offences Against the Person Act 1861 in so far as they apply to Northern Ireland. Decriminalisation in England will not provide of course a right to an abortion. That would require a much more wholescale change to the Abortion Act 1967.See further S. Sheldon, ‘The Decriminalisation of Abortion: An Argument for Modernisation’, Oxford Journal of Legal Studies 36(2) (2015), 334.

In contrast to many of the cases we have considered up until now, the concept of informed consent to treatment may be regarded as one framed through the prism of human rights. Giving consent to treatment can be seen as integral to respect for individual dignity and as recognised by the ECHR in VC v Slovakia in serious cases such an enforced sterilisation can constitute a violation of both Article 3 on the prohibition on torture and inhuman and degrading treatment as well as Article 8.[2011] ECHR 1888. At domestic level, failure to obtain consent may lead to clinicians being subject to the provisions of the criminal law, although this is rare.R v Paterson [2017], Sentencing remarks of Mr. Justice Jeremy Baker, https://www.judiciary.gov.uk/wp-content/uploads/2017/05/r-v-paterson-sentencingremarks-mr-justice-jeremy-baker-20170531.pdf. Yet despite this, in domestic courts it took some time before the law of informed consent could be seen truly in human rights terms. In Chester v Afshar human rights were mentioned, albeit obitur in this context.Chester v Afshar [2005] 1AC 134. It was not however until over a decade later when in the Supreme Court in Montgomery v Lanarkshire Lords Kerr and Lord Reid state that:

Under the stimulus of the Human Rights Act 1998, the courts have become increasingly conscious of the extent to which the common law reflects fundamental values. As Lord Scarman pointed out in Sidaway’s case, these include the value of self-self-determination). As well as underlying aspects of the common law, that value also underlies the right to respect for private life protected by article 8 of the European Convention on Human Rights.Montgomery v Lanarkshire Health Board [2015] UKSC 11 and for further discussion on this case see A.M. Farrell & M.R. Brazier, ‘Not so new directions in the law of consent? Examining Montgomery v Lanarkshire Health Board’, Journal of Medical Ethics 42(2) (2016), 85-88; R. Heywood, ‘RIP Sidaway: Patient Orientated Disclosure – a standard worth waiting for’, Medical Law Review 23(3) (2015), 455; J. Montgomery & E. Montgomery, ‘Montgomery on informed consent: an inexpert decision?’, Journal of Medical Ethics 42(2) (2016), 89.

Here the court in reframed the law of negligence as it applied to informed consent and introduced to a test of risk disclosure looking looking both at the risks that a reasonable patient would want to know and in addition critically what the particular patient in question. The Supreme Court locate this in terms of human rights. But while this is a case underpinned in principle by human rights it only goes so far. The court reframes the law of negligence concerning informed consent rather than providing a deconstruction and reconstruction of informed consent law on human rights grounds. This is a ‘human rights gloss’ rather than a human rights driven law of consent. It is moreover notable that in the cases which have followed there has been a distinct lack of a human rights based focus.See also further E. Cave & N. Reinach, ‘Patient rights to participate in treatment decisions: Choice, consultation and knowledge’, in this special issue.

In contrast privacy and confidentiality of patient information is one area where at least on the face of it the Human Rights Act has had a notable impact. Health care confidentiality was already protected at ECHR level prior to the Act coming into force.Z v Finland (1998) 25 EHRR 371; MS v Sweden (1999) 28 EHRR 313. At the time, Kennedy was writing the English courts had rejected privacy as an independent Tort in cases such as Kaye v Robertson.[1990] EWCA Civ 21. However, in Campbell v MGN the House of Lords confirmed that the equitable remedy of breach of confidence used to safeguard the disclosure of information in the healthcare context as in other personal relationships was itself underpinned entirely by the right to privacy under Article 8 of the ECHR.Campbell v. Mirror Group Newspapers [2004] 2 All ER 995. Moreover, the court confirmed that the balancing test to determine whether disclosure should go ahead should be the test under Article 8 itself. Furthermore, breach of confidence is a nuanced action. It provides an equitable remedy with all the advantages and problems that brings. Moreover, the exact meaning of a ‘reasonable expectation of privacy’ in healthcare remains controversial.See also for a recent discussion of the nature of this expectation M.J. Taylor & J. Wilson, ‘Reasonable Expectations of Privacy and Disclosure of Health Data’, Medical Law Review 27(3) (2019), 432. So, for example, it has been argued following the decision in Source Informatics that the fact that information is anonymised does not constitute a violation of the right to privacy as a person cannot be identified and thus it may be legitimate to use such information for research purposes without specific consent. R v Department of Health ex parte Source Informatics [1999] EWCA Civ 3011. However, as Beyleveld and Histed argued, privacy may not simply be safeguarded by anonymization. Privacy can be and indeed should be seen as a more general matter of control of information.D. Beyleveld & E. Histed, ‘Betrayal of Confidence in the Court of Appeal’, Medical Law International (2000), 227. It is also the case that anonymised information does not mean the information is wholly deidentified and indeed any completely de-identified information is unlikely to be of particular use to researchers.See further J. Du & M. Gerstein, ‘Genomic Anonymity: Have We Already Lost It?’, The American Journal of Bioethics 8(10) (2008), 71; M. Wjst, ‘Caught You: Threats to Confidentiality Due to the Public Release of Large-Scale Genetic Data Sets’, BMC Medical Ethics 11(21) (2010). Nonetheless, controversially much research use of information has been sanctioned in the years that follow on the basis of anonymisation. In an era where there are renewed calls for use of patient information derived from samples and information by a wide range of stakeholders including commercial bodies, the whole question of the impact of privacy as a matter of control rather than simply a question of identity is of particular importance.See also S. Sterckx & J. Cockbain ,‘The UK National Health Service’s “Innovation Agenda”: Lessons on Commercialisation and Trust’, Medical Law Review 22(2) (2014), 221 and T. Helm, ‘Revealed: how drugs giants can access your health records’, The Guardian 8th February 2020.

It is the area of care and treatment of adults lacking mental capacity and those with mental illness where there has been perhaps the greatest development in relation to human rights. There is a strong historic backdrop to matters of detention and treatment of those with mental illness being seen as a matter for fundamental human rights as we saw earlier. It is notable that one of the very few declarations of incompatibility to be issued right at the outset of the Human Rights Act was that of R (on the application of H) v Mental Health Review Tribunal for the North and East London Region & The Secretary of State for Health in 2001.[2001] EWCA Civ 415. Here the court following an approach which had already been recommended for reform by the Richardson Review of the Mental Health Act held that the burden of proof for discharge for a restricted patient under the Mental Health Act should not be on the patient but on those who sought to keep him detained. In 2003 it was held that the inability of a detained patient to challenge who should be recognised as their nearest relative under the 1983 Act was incompatible with Article 8.R (on the application of M) v Secretary of State for Health [2003] EWHC 1094. The decisión in the Bournewood case, HL v UK regarding the legality of ‘informal’ detention of those persons lacking capacity and the consequent change in the law was a sysemic change leading to the introduction of the deprivation of liberty safeguardsAs introduced in the Mental Capacity Act 2005, Schedule A1. and to the further confirmation of the need for such safeguards and their nature and scope in Cheshire West.Cheshire West and Cheshire Council v P [2014] AC 986 HL. Following the widespread impact of this case in relation to the increase in assessements for deprrivation of liberty the area was reviewed by the Law Commission and has now been reformed, see Law Commission Report, Mental Capacity and Deprivation of Liberty (2017) and see also Mental Capacity (Amendment) Act 2019. In Rabone v Pennine NHS Trust Article 2 was held engaged in relation to the breach of an operational duty owed to a patient who was not subject to formal detention and who was allowed leave and then committed suicide.[2012] UKSC 2. These however again can be seen as part of a line of cases which illustrates how human rights challenges may succeed if they can be cast within a narrower traditional ‘civil liberties’ type approach. Questions of detention,MH v United Kingdom [2013] ECHR 1008, [2014] 58 EHRR 35. legitimacy and scope, questions of identity as in the Tarbuck Blood & Blood case succeed. Cases which raise broader Health Policy issues and matters which can be seen as falling more squarely within the ambit of socio-economic rights very rarely do. This may represent understandable judicial caution, respect for the scope of the legislatura and public bodies and where cases reach ECHR the other political dimensión of the application of the margin of appreciation but again it demonstrates the difficulty of evolution of Health Law in human rights terms. Moreover in the area of mental Health is also notable that the courts have not been prepared to use human rights arguments to seriously limit the basis on which enforced medical treatment can be given by for example limiting it only to where needed to protect others from serious harm or only in limited situations to protect the patient.See R (on the application of Wilkinson) v RMO (Broadmoor Hospital Authority) (2002) 65 BMLR 15 CA.

4.Health Law as Human Rights Law: an Uncertain Future

So nearly thirty years after Kennedy’s essay, can we say that Health Law today really a subset of Human Rights Law? Certainly, the normative element of Kennedy’s analysis can be seen as present in aspects of Health Law we have explored above. Through the very existence of the Human Rights Act and thus the formulisation and greater legitimation of human rights analysis, human rights are increasingly helping to frame the discourse and at times to empower the litigant. But the empirical evidence from the decided cases, which we have explored, is very mixed. Health Law is still a subject very much dominated by its silos of the core legal disciplines. As we have seen in individual areas, the language of rights is helping to structure approaches as in relation to privacy and confidentiality and also rhetorically drive change as in relation to informed consent. But the causes of action are very much still in place. Health Law is itself overlaid increasingly by specific statutory provisions notably the Human Fertilisation and Embryology Act 1990, the Human Tissue Act 2004 and Mental Capacity Act 2005. But even these pieces of legislation can be seen as a practical response to a regulatory dilemmas and controversies as to how to address a fast developing technological area in the case of the 1990 Act, to address a scandal – that of retention of human material in relation to the Human Tissue Act and to provide some certainty for practitioners and patients alike in an area rife with legal uncertainty in the form of the Mental Capacity Act 2005.Report of the Inquiry into the Royal Liverpool Children’sHospital, HC 12-11, 30th January 2000. None of these statutes are entirely framed by human rights principles at domestic level.Recommendations that there should be new comprehensive Mental Health Legislation rooted in human rights by the Richardson review were not taken forward by the Labour Government. Department of Health, Review of the Mental Health Act 1983: Report of the Expert Committee (1999). Rather they are pragmatic solutions to problems which needed to be addressed.

There are other factors which have impacted on the empirical dimension of the human rights influence on Health Law in the UK. First, there is the role of the judiciary. We have a Supreme Court but the Human Rights Act itself delimits its powers. In many respects judicial involvement here can be seen as ‘conservative’ legislating with what Sir Robert Megarry VC once memorably referred to as being molecular rather than molar motions.Malone v Metropolitan Police Commissioner [1979], Ch 344. The judiciary of course in the early years would probably not have been judges who had the opportunity to study human rights when qualifying for practice. But those judges such as Lord Bingham who were stalwart supporters of international human rights were in the early years of the HRA cautious in interpretation as the judgments in the Pretty case of course illustrated. There were and still remain notable exceptions. Here as in other areas of his long legal career Sir James Munby made his mark in the case of Burke at first instance providing – a rallying call for those concerned in active human rights interpretationR (on the application of Burke) v GMC [2005] EWCA Civ 1003. – or a going rather too far or in the words of the Court of Appeal of course in that case. In addition, of course more recently in the Matter of Re X (A Child No 3)[2017] EWHC 2036. a clarion call to human rights in a coruscating judgement concerning the place to which a vulnerable teenager should be released from secure detention and in the process eviscerating the Secretary of State for Health and Social Care and the NHS bodies concerned. Members of the Supreme Court also have demonstrated their willingness to engage and evolve the law notably for example, Lady Hale and Lord Kerr in Nicklinson.

Of course, it could be argued that there are problems in Health Law being seen as underpinned by human rights at all. The onset of the Human Rights Act was met with a considerable degree of media coverage – a lot of which was unflattering with concerns it could be effectively a Charter for lawyers. While such claims were in fact unrealistic some problems remain. Is it the case that the human rights principles applied through the Human Rights Act themselves are appropriate? The Human Rights Act draws upon the European Convention of Human Rights which is an older human rights convention. It is concerned with a limited number of civil and political rights drawn from that Convention. As we have seen above the UK is moreover constrained to some extent with the ECHR jurisprudence and such things as the doctrine of margin of appreciation. Human Rights can be seen as a cost. Litigation and asserting rights are an increasing challenge in the era of Austerity. Furthermore engaging human rights in litigation can raise political and policy questions which may not be appropriate for judicial determination. There is also a broader question regarding the UK’s engagement as part of the international human rights community. In the past suggestions have been made that the UK could leave the Council of Europe Convention on Human Rights and the plans by the Conservative Party for a ‘British Bill of Human Rights’.Protecting Human Rights in the UK: The Conservatives Proposals for Changing Britain’s Human Rights Laws and see BBC News, ‘David Cameron: I'll fix human rights “mess”’, 12th June 2015, https://www.bbc.co.uk/news/uk-politics-33134338. The new Conservative Government elected in December 2019 makes it more likely that such policies may be returned to in the future.

But let us return to Kennedy’s normative use of human rights here. Yes it is questionable whether Health Law in the UK is truly a subset of human rights law. But should human rights be seen as critical and fundamental to Health Law today? Yes, they should. Kennedy was right to see the fundamental importance of human rights to the discipline. They provide tools of empowerment for individual patients framing claim rights but also frame the debates around the responsibilities of individuals and of states. There are risks though in assuming that human rights law as currently structured and implemented by the courts provides the answer as to the framework for Health Law in the future. The old causes of action remain very much in place. Perhaps it was inevitable that only so much could be expected from evolution of human rights in health law at domestic level. Instead, it is developments at international and European level which are likely to be one of the most important elements in framing Health Law through human rights in the future. It is increasingly important to ensure that domestic Health Law is not divorced from its global context. Medicine and science share a global language and a global mobile health community. Such developments impact on how we frame professional practice norms. Global health law itself is a young discipline whose boundaries are still being developed.L.O. Gostin, Global Health Law (Boston: Harvard University Press, 2014). International human rights instruments are themselves evolving and new instruments are being created. To date the UK has still not however become a signatory of the Council of Europe Convention on Human Rights and Biomedcine and its related protocols though these are influential and used by the ECHR in the interpretation of case law.F. Seatzu, ‘The Experience of the European Court of Human Rights with the European Convention on Human Rights and Biomedicine’, Utrecht Journal of European and International Law 31 (2014), 5. In the area of mental health and mental capacity lawThe links with mental health and capacity jurisprudence and the scope of litigation in this area go beyond the scope of this paper but do raise important questions in terms of human rights analysis and also definitional boundaries of the discipline. the normative element of human rights with international statements such as the UN Convention on the Rights of Persons with disabilities are becoming increasingly influential in informing both litigation and debates regarding legal reform.See further P. Bartlett, ‘The United Nations Convention on the Rights of Persons with Disability and Mental Health Law’, Modern Law Review 75(5) (2012), 752. In relation to the potential and challenges of the UNCRPD see B. McSherry & I. Freckleton (eds.), Coercive Care: Rights, Law and Policy (London: Routledge, 2013); B. Clough, ‘People like that: Realisting the Social Model in Mental Capacity Jurisprudence’, Medical Law Review 23(1) (2015), 53. The international element of Human Rights is impacting on domestic responses to health rights as we have seen recently in the context of the law concerning abortion in Northern Ireland through the condemnation of the Northern Ireland law by the United Nations and this being in turn reflected in the Supreme Court judgment in that case.See further Report of the inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW/C/OP.8/GBR/1, 23 February 2018, para 18. The renewed calls for older person’s rights in the context of health care and the prospect of a UN Convention here in the future give rise to the possibility of a new emphasis on rights for a group long neglected by policy makers.See further J. Dabbs Sciubba, ‘Explaining campaign timing and support for a UN Convention on the Rights of the Older Person’, International Journal of Human Rights 18(4) (2014), 462. M.R. Brazier & B. Clough, ‘Never too old for health and human rights’, Medical Law International 14(3) (2014), 133. Perhaps Kennedy was simply too soon before his time. While human rights may yet have simply not fulfilled its potential yet both normatively and empirically in UK Health Law the slow but steady evolution at domestic level accompanied with new drivers for change at international level may ultimately mean that it goes far beyond an idealistic aspiration to become a coherent reality.