Constitutional and Administrative Law evolved

Adrian Turner argues Mrs. Purdy's situation was a speculative matter, in regards to the worsening of the condition, and the Court shouldn't get involved in speculative matters which may open up the scene for more litigation. 52 Controversy will continue to surround issues of assisted suicide, but what is clear is how medical law evolved from the Pretty to the Purdy case. Autonomy was embraced and this was without the influence of human rights.

An area where English medical law has had to change, due to the influence of human rights is mental health. In the case of HL v UK53, L who was mentally disabled was admitted into hospital. His carers claimed he was falsely imprisoned. However, the majority of the HL's held L had not been imprisoned in the hospital. He hadn't attempted to leave and had been kept in an unlocked ward. 54 The ECtHR disagreed with the HL's and held the informal 'detention' under common law was unlawful and violated L's Article 5 right to liberty.

There was no formal admission, procedures, and insufficient safeguards to protect against arbitrary detention required by Article 5 (1). Also, there had been no access to a court to determine the legality of the detention under Article 5 (1). 55 The ECtHR's held in the leading case of Winterwerp v The Netherlands56, Article 5 (1) (e) doesn't define the lawful detention of persons of 'unsound mind' because psychological research is constantly evolving, more disorders and treatments are being acknowledged so it's appropriate to be flexible.

The ECtHR set guidelines which member of states must ensure domestic law complies with. The ECtHR held an individual shouldn't be deprived of their liberty unless they have reliably shown to be of 'unsound mind' by objective medical expertise. The disorder must be of the nature that it requires detention. The disorder must persist throughout the period of detention. The Court also recognised the national authorities are to be recognised as having certain discretion to evaluate evidence before them and act accordingly. 58

The Mental Health Act 1983 (MHA) had to be amended by the MHA 2007 to make it compatible with not only Article 5 but also Article 359 because the unlawful detention and treatment of individuals violated Article 3. The amended MHA allows for sectioning to be used where necessary under specific circumstances. Under s. 2 involuntary admission is permitted for 28 days which must be approved by two doctors, following an application by an approved social worker or the nearest relative. The patient can also appeal to the Mental Health Review Tribunal (MHRT) within the first 14 days. S.

3 allows for the involuntary admission for treatment authorised following a consultation with an approved social worker or relative for an initial period upto 6 months (which could be extended indefinitely). The patient can appeal to the MHRT at any time. S. 4 allows for emergency assessment authorised by a doctor who has previous knowledge of the patient for upto 72 hours. S. 5 allows for the admission to a hospital for upto 72 hours prior to assessment for admission to a mental hospital. 60 However, although the MHA has been amended, academics argue more time should be spent listening to patients in regards to mental health legislation.

The Act allows for individuals to be detained and treated against their will if it's approved by doctors unlike every other illness where a choice is given. It's claimed mental health patients are demonised so they can pay for the privilege. 61 Despite the criticism, mental health legislation has had to change due to influence from human rights to protect the rights of individuals suffering from mental health problems and to protect them from being deprived of their liberty. English medical law and human rights clearly have a complex relationship.

There are areas where they don't overlap, where they are balanced and where English domestic law has evolved as accord of itself. There are also areas where human rights have influenced English medical law to the extent where it has had to change to become compatible with human rights. Human rights have a positive obligation to ensure the rights of individuals are protected and maintain flexibility due to the constant developments in medical research. English medical law is quite rigid in its approach to medical matters.English law could possibly, like human rights, allow for more flexibility due to the constant developments within medical research.

Bibliography Books:

1) Carroll A, Constitutional and Administrative Law, 4th Edition, Oxford University Press, 2006 2) Davies M, Textbook on Medical Law, Blackstone Press Limited, (1998) 3) Seedhouse D, Ethics The Heart of Health Care, Third Edition, John Wiley & Sons, (2009 4) Dworkin R, Philosophy of Law, Oxford University Press, (1997) 5) Pattinson D. S, Medical Law and Ethics, Sweet & Maxwell Limited, 2009