The slogan “Protect our NHS” has been at the forefront of the British response to the coronavirus pandemic. Whilst gratitude and support for the heroic efforts of doctors, nurses and countless other healthcare workers has been, quite rightly, a global phenomenon, in the United Kingdom this sentiment has been closely bound up with a collective appreciation of the NHS as an institution. The principle of state-provided medical treatment, available to all and free at the point of delivery, has been a source of pride since the post-war Government of Clement Atlee, and the reforms of his Health Minister Aneurin Bevan. This has been an established norm for 72 years, and very few mainstream politicians would dare to challenge it at the ballot-box.
This is not for one second to imply that the NHS operates perfectly. Like many of our readers, we are extremely proud of loved ones who work in the health service, but are acutely aware of the intense strain and deep-rooted problems faced by the system, most of which have long predated Corvid-19. There are indeed many aspects of its current governance, management and financial structures which a generous person might describe as deeply dysfunctional, and which an exhausted medic would be justified in summing up in more blunt terms. Also, aside from questions about the need to reform major elements of the organizational and fiscal frameworks, in other words, how we deliver public healthcare, there are practical questions about what we deliver under this umbrella. In a world in which ever more things are possible, how we set parameters around what is appropriate and achievable becomes challenging.
The vision for the NHS came from Bevan’s South Wales homeland, and the Tredegar Medical Aid Society, in which people paid by subscription into a common pot, and when needed, received “free” medical and dental treatment in return. The project was to roll this concept out on a national scale, but Bevan and its other architects could never have foreseen the exponential growth in spending which would follow, in the decades to come, dramatic advances in science and technology. As a result, we are left with painful decisions which simply did not arise in the 1940s, for instance in relation to surgery which is corrective, but technically cosmetic (e.g. for conditions like “pigeon-chest”/pectus carinatum), or the provision of IVF and other fertility treatments. In our generation, we could potentially spend a near infinite amount of money on healthcare, but choosing where to draw the lines, and (sometimes) whose heart to break, is not an easy or enviable task.
Therefore, we are not aiming to present a rosy and sentimentalized picture of the NHS in 2020, as we are faced with major practical and philosophical challenges, but underlying all of this, we encounter a deep and widely held commitment to the basic ideal within British society. An understanding has taken root that it is the role of the State to provide healthcare to anyone who needs it, and consequently, that individuals effectively have a “right” to free medical treatment. This is a fascinating development when we come to think about Constitutions and rights.
A right to free healthcare for all is certainly not built into the ECHR (which focuses on civil and political rights), and in fact, the Strasburg Court is explicit that the Convention does not guarantee a right to be healthy or receive healthcare. We are not suggesting that this international document is completely irrelevant to health-related issues, but it is certainly not its main remit. Moreover, the meaning and outworking of what are sometimes called “second generation human rights” to social, cultural and economic inclusion and benefits, is inevitably controversial, because the questions are dependent both on resources available and political will. Nevertheless, the bottom line for present purposes is that the Human Rights Act (which incorporates the ECHR into the British legal system) does not guarantee a universal right to free healthcare, and the other “constitutional statutes” which are recognized to have special legal significance do not contain such a right either. Interestingly, it would also be highly complex to seek assistance from any tenet of the Common Law in this protection.
However, this does not mean that there is no “right” to medical treatment, free at the point of delivery, as the answer will depend on our concept of a right. Arguably, this foundational principle of the NHS is part of our “Constitutional Culture”, in the sense that it is a recognized societal norm for a critical mass of citizens, and it is an expectation held by many people about what the State must do. As a consequence, it can be regarded as a semi-explicit part of our social contract in twenty-first century Britain, and although we are not suggesting that this expectation will last for ever, this lack of “eternal nature” is, undoubtedly, also applicable to the rights contained in the Human Right Act. The truth is that in the UK Constitution, the legal power of Parliament to do whatever it wishes, subject to the practical willingness of the wider population to go along with its edicts, means that at one level, no kind of right is unassailable in the British system.
Nonetheless, in some senses, a right which exists within our Constitutional Culture in the United Kingdom, is more secure than a right which exists within the ECHR, but it is not sufficiently accepted or endorsed. As the saga over prisoner voting rights demonstrated, Parliament can ignore the Human Rights Act and also the rulings of the Strasbourg Court if it is inclined to do so, but disregarding the will of its electorate is not an option. For as long as enough members of society believe in a right to healthcare free at the point of delivery, and attacking it remains politically unthinkable, the meaningful nature of this right is unquestionable.
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European Court of Human Rights Thematic Report ECtHR/Council of Europe (June 2015)
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