Dignity: A Relevant Normative Value in ‘Access to Health and Social Care’ Litigation in the United Kingdom?

Miller, Jacinta (2015) Dignity: A Relevant Normative Value in ‘Access to Health and Social Care’ Litigation in the United Kingdom? In: Justiciability of Human Rights Law in Domestic Jurisdictions. Springer, London, pp. 71-90. ISBN 978-3-319-24014-5

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Abstract

This chapter considers whether and how cognizance is given to the value of dignity in ‘access to care’ litigation in the United Kingdom with particular reference to the case of McDonald v United Kingdom. The approach taken by the Court in this case raises questions as to how ‘dignity’ ought to be understood in the assessment of the health and social care needs of individuals, particularly the elderly, in the context of finite resources. It is questioned whether the concept of dignity within the case is compatible with the current understanding of dignity in health and law, and in particular within a right to health approach (as defined in Article 12 of the International Covenant on Economic, Social and Cultural Rights). As stated in the first paragraph of General Comment 14 ‘[e]very human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity.’ Dignity is not a right, rather it is a ‘normative value’ associated with human rights. As such it is a standard which courts ought to refer to in assessing whether the state has acted proportionately in the lawful limitation of a right, even in the context of finite resources. Given the criticism of the concept of dignity as being vague courts have been reluctant to focus on this value, except in ‘hard cases’. However there is a developing body of evidence, particularly within the realm of health and social care which can provide guidance on the meaning of the concept in particular contexts.

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