Positive Health Online

Adjudications by the Advertising Standards Authority have caused controversy within the Complementary and Alternative Medicine (CAM) healthcare sector. Are the Human Rights of CAM Practitioners and their patients being protected? Richard Eaton invites you to enter the debate.

This article is intended to stimulate discussion about how the remit of the Human Rights Act 1998 may or may not apply to the activities of the Advertising Standards Authority (ASA)[1] and, if it does not apply, then the degree to which, arguably, it should. What follows is not, of course, intended to constitute legal or other advice.

The Dispute

It is a matter of record that the relationship between the Complementary and Alternative Medicine (CAM) professions and the ASA has reached what has been described by the Alliance for Natural Health as ‘an all-time low’, particularly since the extension of the ASA’s remit to make ‘Rulings’ (‘adjudications’) upon online marketing and media.[2]

The jurisdiction of the ASA should not be underestimated. On its website,[1] the ASA states as follows:

"As the UK’s independent regulator for advertising across all media, our work includes acting on complaints and proactively checking the media to take action against misleading, harmful or offensive advertisements, sales promotions and direct marketing….if we judge an ad (sic) to be in breach of the UK Advertising Codes, it must be withdrawn or amended and the advertiser must not use the approach again."

Elsewhere on its website it states:

"The professional and brand damage from getting your advertisement banned by the Advertising Standards Authority can be devastating"

and further that:

"We have a range of effective sanctions at our disposal to act against the few who do not and ensure they comply with the rules."

There is an urgent need for CAM Practitioners and, as suggested in this article, their patients and others to enter the debate and to make their views known to the ASA, their Member of Parliament, the government and to all other interested parties. Campaigns are already in progress, including those by freedom4health[3] and by the holistic hormone health specialist Dr Alyssa Burns-Hill.[4] Updates are available on the Alliance for Natural Health website.[5]

The main cause of dispute is the allegation that the ASA adjudication process is flawed and unfair in that it fails to properly take account of representations made by CAM Practitioners or to act in accordance with the Principles of Natural Justice.

In an article published in the January 2014 edition of CAM Magazine[15] Dr Alyssa Burns-Hill claims that the ASA is “overstepping the mark in terms of their remit” and that it has an “inability to stand back and look at their own procedures and how out of control they are”.

Freedom4health is also quoted, as follows:

“The UK Advertising Standards Authority has shown bias and disregard for evidence when investigating the advertising of complementary, holistic and integrative medicine. It acts as prosecutor, judge and jury in one…. and publishes highly questionable ‘adjudications’…”

H:MC21 (www.hmc21.org) is a charity established, amongst other things, to inform the public of the facts about homeopathy and its historical and scientific relationship to orthodox medicine. It aims to do this through research, publication and campaigning. The ASA adjudicated on complaints about H:MC21’s advertisement placed in the Care Supplement of the New Statesman magazine in 2010. Following its unsuccessful appeal against the adjudication, H:MC21 posted the following statement on its website:

“The process of fighting this complaint has given H:MC21 the impression that the ASA does not consider it sufficient for Homeopaths to state facts and supply evidence to support those facts. It would appear that if those facts support homeopathy, the ASA considers them to be unacceptable in an advertisement. We consider that an independent investigation into the ASA’s handling of this case and of other cases against homeopaths is urgently required.”

An extract taken from the press release subsequently issued by H:MC21 and posted on its website, reads as follows:

“The adjudication is not about consumers; it is about suppressing the charity’s ability to inform the public of the demonstrated facts that set out a clear argument for homeopathy as a legitimate, cost effective and safe alternative to conventional medicine.”

The Protection Of Rights And Freedoms?

The Human Rights Act 1998 sets out the rights and freedoms in the UK that are protected by the specified Articles contained in the European Convention on Human Rights.[6] In answer to the question ‘What are human rights?’ the Equality and Human Rights Commission[7] replies on its website:

“Human rights are the basic rights and freedoms that belong to every person in the world”

When going on to ask the question “How do human rights help you?” the Commission replies:

“Human rights are based on core principles like dignity, fairness, equality, respect and autonomy. They are relevant to your day-to-day life and protect your freedom to control your own life, effectively take part in decisions made by public authorities which impact upon your rights and get fair and equal services from public authorities.”

So, for the purposes of the 1998 Act, the protection of human rights is restricted to decisions and services provided by ‘public authorities’. However, the 1998 Act will also apply to a private Company when it is carrying out a public function, as stated in a simple and straightforward online government publication.[8]

The ASA is an independent limited company and, as such, would claim that it is not subject to the Human Rights Act 1998, notwithstanding the allegedly de facto ‘public’ nature of its remit. Dr Alyssa Burns-Hill alleges, for instance, that it is “masquerading as a government department”. Nor is the ASA a designated “public authority” for the purposes of the Freedom of Information Act 2000. It remains to be seen whether it can be shown that the ASA is ‘carrying out a public function’, for the purposes of the 1998 Act, when it is monitoring and adjudicating upon the activities of a private sector CAM Practitioner.

 At page 8 of the government publication, referred to above, it also states:

“…(an individual) cannot sue, or be sued by, another individual for breaking the Convention rights. But you may benefit indirectly because the Human Rights Act means all laws have to be given a meaning and effect which is as close as possible to the Convention rights. It’s also a lot easier to insist on your rights if they are written down. You can point them out to the person who you think is ignoring them”.

Is it possible that, in certain circumstances, a critical adjudication by the ASA relating to a CAM Practitioner (whether or not it is published on the internet) could be said to breach the human rights of a CAM patient? Might circumstances arise where, by adjudicating against published information, the ASA inappropriately restricts the patient’s personal choice to access the type of healthcare treatment that they wish to receive from their chosen CAM Practitioner, thereby breaching Article 8 which protects:

“The respect for private and family life, home and correspondence”?[9]

To explore this further, it is logical to review how the public healthcare sector deals with the issue of human rights by analogy that what is appropriate for a public sector healthcare practitioner should also be appropriate for a private sector CAM Practitioner.

For this article, I refer to the following guidance published in 2008 by the Department of Health (DoE) as a guide for National Health Service (NHS) staff. The ‘Page’ numbers given in brackets (below) refer to relevant sections of this DoE publication, which is titled: Human Rights in Healthcare - A Short Introduction. [10]

How could an adjudication published by the ASA impact upon the human rights of a patient (Pages 6 to 11)? The human right to ‘private… life…’ is not an absolute right but a ‘qualified’ one (Page 12). This means that it can be interfered with, for instance in order to protect the rights of others. Any interference must be necessary and proportionate (Page 12).

An essential ingredient of the DoE guidance is the Principle of Proportionality, which is described by The Equality and Human Rights Commission[11] as being at:

“..the heart of a human rights framework. This can be summarised as ‘not using a sledgehammer to crack a nut’. It ensures that any restriction of a person’s human rights is kept to a minimum.”

The issue, I suggest, is whether or not the publication of an adjudication (‘Ruling”) by the ASA which directs the specified CAM Practitioner to remove or amend information about themselves, their qualifications and healthcare services from their marketing material and website, is a necessary and proportionate direction.

What if a patient claims that the ASA adjudication excessively and inappropriately serves to prevent them from accessing CAM information and healthcare services, thereby restricting their human right to make a personal choice (Page 16) about their healthcare treatment?

In short, should a prospective patient be entitled to make the lifestyle healthcare choice to investigate and receive CAM treatment without interference from the ASA, unless such interference can be proved to be necessary and proportionate?

The DoE guidance states that the human right to ‘Private… life’ should be ‘interpreted broadly’ to include ‘issues such as personal choices, relationships, physical and mental well-being, access to personal information and participation in community life’.

This, possibly, is one reason (apart from their clinical effectiveness) why a significant number of CAM treatments are available through the NHS to patients at leading NHS Hospitals like, for example, The Royal Marsden in London.[12]

Ancillary to the human rights of their patients, a CAM Practitioner might seek to argue that, in their capacity as a Healthcare Practitioner, they have the human right to ‘hold opinions and express views’ (including on their website) further to their right to ‘Freedom of Expression’ under Article 10.[13]

As a separate issue, some CAM patients might even consider that any unnecessary limitation of their access to CAM services, including information about such services, could be an abrogation of their “Right to Life”, on the basis that this could lead to a refusal of life-saving medical treatment (Page 19) contrary to Article 2.[14]

Generally, as mentioned above, any discussion relating to the (qualified) human rights of CAM Practitioners or their patient needs to strike a balance between their rights and the rights of others. Page 7 of the online government publication states as follows:

“The Human Rights Act makes sure that those in authority over you will have to check that they do not ride roughshod over your rights even when they believe they are doing so for a good reason. They will have to be careful about the balance they are striking and think hard about how they can cause the least possible harm to individuals.”

The ASA should have this in mind when making an adjudication about the status and competence of a CAM Practitioner or about the CAM services they claim to provide to their patients.

The Proposal

My proposal is that the ASA is clearly perceived by many to be carrying out the de facto (if not de jure) public function of monitoring and regulating the marketing operations of CAM Practitioners and, as such, it should adopt the Principles of Natural Justice and act according to the provisions of the Human Rights Act 1998.

Even if this proposal fails, it is arguable that the ASA should logically and rationally apply the same criteria about the status, competence and services of private sector CAM Practitioners as the NHS applies to its public sector healthcare staff. This is a rational conclusion, bearing in mind that CAM Practitioners are also practising within the NHS where they are subject to NHS policy and guidance, including in relation to human rights matters.

Regardless of the legal technicalities and whether or not the Human Rights Act 1998 applies, it has to be said that, as a basic human right, CAM Practitioners and their patients should have the right and freedom to chose to practise and to receive complementary, integrative, holistic and alternative medicine treatments and healthcare. Any diminution or regulation of such right and freedom should only be on the basis that it is necessary, appropriate and proportionate. Furthermore, the regulation should only be carried out by a publically accountable regulator.

Events have shown that there needs to be a full and detailed debate about the proportionality and accountability of the duties and responsibilities of the ASA in so far as they relate to the rights of CAM Practitioners and their patients.

In the interests of justice, the public adjudications of the ASA should comply with the principle of proportionality and the basic rights and freedoms of all parties affected by the ASA adjudication process must be properly recognised and protected.

References

1. www.asa.org.uk/     www.asa.org.uk/Rulings/Adjudications.aspx
2. http://anh-europe.org/search/node/Advertising+Standards+authority
3. www.freedom4health.com 
4. www.asa-the-truth.org.uk
5. http://anh-europe.org/search/node/Advertising+Standards+authority
6. www.equalityhumanrights.com/human-rights/what-are-human-rights/the-human-rights-act/
7. www.equalityhumanrights.com/human-rights/what-are-human-rights/
8. www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/documents/digitalasset/dg_070456.pdf  (See pages 7 & 8)
9. www.equalityhumanrights.com/human-rights/what-are-human-rights/the-human-rights-act/respect-for-your-private-and-family-life/
10. www.bihr.org.uk/sites/default/files/Human%20rights%20in%20healthcare%20-%20short%20introduction.pdf
11. www.equalityhumanrights.com/human-rights/human-rights-practical-guidance/about-this-collection/
12. www.royalmarsden.nhs.uk/diagnosis-treatment/patient-care/pages/integrated-care.aspx
13. www.equalityhumanrights.com/human-rights/what-are-human-rights/the-human-rights-act/freedom-of-expression/
14. www.equalityhumanrights.com/human-rights/what-are-human-rights/the-human-rights-act/right-to-life/
15. www.cam-mag.com

Information about human rights may be found online, including at:

www.bihr.org.uk

www.bihr.org.uk/projects/human-rights-in-healthcare-public-sector

www.justice.gov.uk/human-rights