Preparing for Emergencies- Guidance For Health Boards in Scotland

3. Human Rights and Resilience Planning

3.1 The Human Rights Act 1998 applies in its entirety but some rights can be derogated in exceptional circumstances including in cases of public emergency. This is defined as,

'an exceptional situation of crisis or emergency which afflicts the whole population and constitutes a threat to the organised life of the community of which the community is composed'.

3.2 A public emergency must be actual or imminent, potentially affect the whole nation and threaten the continuance of the organised life of the community.

3.1 In most situations to which this guidance applies it is unlikely that the UK would formally derogate from Convention rights. The normal rules of respect for absolute rights and legality, necessity and proportionality of interference with qualified rights would therefore apply.

3.4 Human Rights under the European Convention on Rights (ECHR) fall broadly into three categories:

Absolute rights - cannot be infringed under any circumstances and include Article 3 (the prohibition of torture, inhuman and degrading treatment or punishment), Article 2 (the right to life), Article 4 (prohibition of slavery and forced labour) and Article 7 (no punishment without law);

Limited rights - can be limited in certain circumstances as set out in the ECHR and include Article 5 (the right to liberty and security); and

Qualified rights - that the state can lawfully interfere with in certain circumstances and include Article 8 (the right to a private and family life, home and correspondence) and Article 10 (freedom of expression).

3.5 An interference with a qualified right must have a legal basis, pursue a legitimate aim (such as public health or the protection of the rights of others), and be the least restrictive measure capable of achieving that aim (the tests of legality, necessity and proportionality).

Application of Human Rights issues: examples in resilience planning

3.6 There may be a range of situations where human rights issues are engaged in times of an emergency, be it a 9/11 type attack or a pandemic outbreak such as Swine Flu or Norovirus. It is important that all measures taken by Government to enable services to cope with significant staff shortages and other impacts of emergencies respect human rights, including the avoidance of arbitrary limitation of rights, and discriminatory treatment, and it is vital that individuals are protected from ill-treatment and detention.

Swine flu/Norovirus Pandemic

3.7 In the case of an outbreak of Swine flu or Norovirus, emergency services may be required to confine infected people to a certain area in order to prevent spread of the virus. Such measures could lead to potential breaches of Article 5 of the ECHR which is a limited right, protecting an individual's right to liberty. Article 5 contains a list of legitimate grounds for the deprivation of liberty, and procedural guarantees associated with deprivation of liberty.

3.8 It is important to note that Article 5(1)(e) of the ECHR permits the lawful detention of persons for 'the prevention of the spreading of infectious diseases.'

3.9 A pandemic outbreak could also impact upon the right to respect for private and family life under Article 8 of the ECHR. Any restriction on contact with family members, for example, should be the least restrictive option which could achieve the aim of protecting public health. Proportionality should be assessed based on the impact of particular individuals, taking into account their specific conditions and circumstances. This may be relevant in contexts of quarantine.

3.10 The conditions of detention in which infected persons may be held may give rise to human rights issues under Article 3 of the ECHR.

3.11 Article 3 is an absolute right from which no derogation or exception is permitted at any time. Further, Article 3 requires the State to take positive measures for protection from ill-treatment.

Triage

3.12 Following a natural disaster or terrorist attack, emergency services will be stretched to the limit and medical staff will be thin on the ground. Medical services and health providers may be required to triage patients and in doing so will need to guard against risks to life (Article 2) and to leaving patients in circumstances which would amount to cruel, inhuman or degrading treatment, within the meaning of Article 3.

3.13 Positive obligations under each right require health and other public authorities to take all reasonable steps to avoid real and immediate risks to life or of degrading treatment. This has implications for due diligence in the design and delivery of systems of prioritisation.