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The Human Rights Act 1998 incorporates into domestic law the ECHR to which the UK has been committed since 1951. The Act modernises relationships between people and the State.

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4000 WORDS The Human Rights Act 1998 incorporates into domestic law the ECHR to which the UK has been committed since 1951. The Act modernises relationships between people and the State. The Act has brought huge responsibilities across the UK and one such responsibility is with regards to Article 2(the protection of the right to life) & Article 3(No one shall be subjected to torture or to inhuman or degrading treatment). Article 2 & 3 imposes on the State positive obligations in that the securing of certain conventional rights can only be achieved by State action to regulate certain types of conduct. Article 2 is one of the 'most fundamental provisions in the Convention' as it 'not only safeguards the right to life but sets out the circumstances when the deprivation of life may be justified.'1 The State's obligation is not confined to the duty to refrain from unlawful killing and to investigate suspicious deaths; it also extends to the State to take steps to prevent the avoidable loss of life. In LCB v. UK, for the first time the Court recognised that Article 2(1) not only refrains the State from the intentional and unlawful taking of life, but also imposes a duty on the State to take appropriate stops to safeguard the lives of individuals within the jurisdiction. The Court was prepared to examine, an application regarding circumstances that did not result from use of force by the agents of the State. The applicant had developed leukaemia, which she claimed was because of her father being exposed to radiation whilst serving in the military, claiming that the absence of information and monitoring of her health by the British authorities, was a breach of Article 2. The Court concluded that there was no breach of Article 2, but based its decision on the casual link between the exposure to the father and the illness of the daughter not being established. ...read more.


However, the difficulty arose when the applicant had decided that under no circumstances was he going to take the drug and therefore refused to corporate. It is legal to impose mental treatment, as long as another psychiatrist also agrees that the treatment should be given. Hence, in this case another psychiatrist was consulted and he too agreed that the treatment should be given. As a result, they pinned the applicant down on to a bed and by force injected the drug into him. This case gives rise to the issue of how far can one administer treatment by force without the applicant's consent and when does it amount to degrading treatment? Hence the authorities' positive obligation to benefit the patient must be balanced with the force needed to impose the treatment on the patient. Both must be proportionate or there is a danger that Article 3 would be infringed. How much force is sufficient cannot be stated for certain as it is only through future cases that the scope will be set. Withholding proper medical care in a case where someone is suffering from a serious illness could, in certain circumstances, amount to treatment contrary to Article 3. Although how 'proper medical care' should be defined is a matter of debate and is ultimately for the Courts to decide.10 Equally, however, providing invasive treatment contrary to the patient's expressed wish of his/her best interests, where, for example, the burden outweighs the benefits, this could also violate that patient's Article 3 rights. This latter interpretation was reinforced by a 1997 case before the European Court,11 in which it was held that Article 3 includes the right to be allowed to die with dignity. Therefore either giving or withholding treatment could breach the patient's Article 3 rights, depending upon the individual circumstances. In addition to differing interpretations of individual rights, there are also some cases in which different rights appear to conflict. ...read more.


Some indication can be taken from the case of Bernsaid v UK. In this case the principle that was established was that, if the treatment was available in the country that the applicant was being deported, then regardless of how expensive that treatment was and whether the applicant would be able to afford it or not, the applicant could be deported. In this instance, no positive obligation would arise and consequently there would be no breach. This principle was reinforced in Cryz Varas v Swedan where the applicant suffered from depression and the act of deportation would worsen his condition. It was held that this was unacceptable and wouldn't therefore constitute a violation of Article 3. The State was under no positive obligation. In addition to this situation, the State is under no positive obligation to assist someone to prosecute another state for breach of Article 3.19 CONCLUSION Member States have a positive obligation to protect individuals from degrading and inhuman treatment, and to protect life. The ECHR realises the vast duties and obligations of the State and thus does not want to burden Member States too much. As a result the extent to which the Member States have a positive obligation although wide, it is very unlikely that a violation is found unless it is of a very serious nature. For a breach to take place, it has to be first proven that the Member State was fully aware that the applicant's life was in danger or that there was a danger of him/her being subject to degrading/inhuman treatment.20 Where the Member State is aware of this, it is sufficient for the Member State to show that everything that could be reasonably expected in the circumstances was done, and as long as the State has not totally disregarded21 the situation, it is extremely unlikely that a breach would be found. This obligation is also restricted to costs. The cases discussed give some indication of the extent of positive obligation on each Member State. Whether the extent of the positive obligation will be further extended can only be determined by future cases. ...read more.

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