In our view, therefore, medical law is a subset of human rights law. (Kennedy & Grubb Medical Law (3rd ed.) Discuss.

The Grand Chamber of the ECtHR held the issue of when the right to life began came within the margin of appreciation. Under English law the embryo had no independent rights or interests, and no right to life under Article 2.  The Court held the domestic legislative provisions balanced out competing public and private interests under Article 8. It didn’t consider Ms. Evans right to become a parent in the genetic sense should be accorded greater weight than J’s right not to have a genetically related child with her. The Court emphasised since the use of IVF gave rise to sensitive, moral and ethical issues against a background of evolving medical and scientific developments and that there was no common consensus within Europe that a wide margin of appreciation would be appropriate.

The Grand Chamber and the English courts both agree the provisions in the HFEA respect human dignity and free will as well as ensuring a fair balance between the rights of the parties in the IVF treatment. Both parties had a right to withdraw their consent before the embryos were fertilised. This shows the balance of the relationship between English medical law and human rights. Both sets of law equally aimed to protect the rights of both Mrs. Evans right to motherhood and Mr. J’s right not to be forced into fatherhood.

However, ethically this decision has been criticised heavily. The Court failed to state which of the parties’ right to private life would be most interfered with by the regulation and reflected very little upon reproduction under Article 12. Although there was equal success in the right to veto consent, women in Ms. Evans circumstances would be in a worse position than infertile men because frozen sperm can be used with any future partners while the success rate of frozen eggs is poor.Also, a man would not be subjected to section 13 of the HFEA because he would not need a woman’s cooperation to start treatment services, so there maybe indirect indiscrimination against women. 

The HFEA has also been criticised because it remains silent in the breakdown of partnership during IVF. Ms. Evans had no way of anticipating her changed position. The HFEA is behind the ever-evolving medical law and needs to be updated so like human rights law it is flexible and is allowed to change. Although the court’s role in Evans was to resolve the dispute at hand, a broader solution should be found for the protection of reproductive autonomy. Possibly developing the law by removing critical barriers to the access of fertility services and embracing and developing new egg storage technology would preserve the value of reproductive autonomy more efficiently. 

Despite all the criticism, this case demonstrates an example where domestic law stood without influence from human rights. Also English law and human rights law were equal in balancing interests of both parties.

English medical law has also changed without the influence of human rights. This occurred in the case of Pretty v The UK and R (on the application of Purdy) v Director of Public Prosecutions (DPP). In the case of Pretty, Mrs. Pretty was terminally ill with motor neurone disease and requested the DPP not to prosecute her husband for under section 2(4) of the Suicide Act 1961.Under s.2 (4), a person can be charged with assisted suicide with the consent of the DPP. Also under s. 2 (1) if a person aids, abets, counsels or procures the suicide or attempted suicide of another they can be imprisoned for upto 14 years.Mrs. Pretty lost in her appeal claiming the Act and the DPP’s actions were incompatible with her rights under the Convention. The CA and the House of Lord’s (HL) disagreed. Mrs. Pretty sought to rely on Article 2, Article 3, Article 8, Article 9 and Article 14.

The HL’s dismissed all arguments and stated Article 2 protected the sanctity of life rather than conferring rights for assisted suicide. Article 8 (1) was held not to be engaged because it was interpreted to protect the way in which individuals lived their lives, rather than a wish to die. The HL’s approached the argument from a wider perspective and not only considered Mrs. Pretty’s Convention rights but also general policy implications.

The ECtHR, unlike the HL’s, accepted that Article 8 (1) was engaged but the interference was justified under Article 8 (2) because it was necessary in a democratic society to protect the rights of others particularly the vulnerable. The Court held s.2 of the 1961 Act protected the weak and vulnerable who weren’t capable of making decisions regarding the ending of life. The Court agreeing with the HL’s that Article 2 didn’t confer a right to die or create a right to self-determine when to choose death over life. 

 However, in the Purdy case the HL’s took a completely different approach. Mrs. Purdy had multiple sclerosis. She wanted detailed guidance from the DPP that her husband wouldn’t be prosecuted if and when he assisted her to the Dignitas Clinic, where she would die. She argued the DPP had a duty to give clear guidance of policy and failing to do so was incompatible with Article 8 (1), which interfered with her right to private and family life. Mrs. Purdy’s main focus was s.2 (1) and (4) of the Suicide Act 1961 weren’t compatible with Article 8 (2). The CA followed the HL’s authority in Pretty, stating Article 8 (1) wasn’t engaged and Article 8 (2) didn’t apply. It was held s.2 (1) would be satisfied, because Mrs. Purdy’s husband would make arrangements and accompany his wife to the clinic. The DPP was held to have no duty to publish a detailed policy guide on assisted suicide. The HL’s didn’t agree with the CA and followed the decision of the ECtHR in Pretty.

The ECtHR in Pretty found Article 8 (1) to be engaged, stating an individual’s right to self-determination and private life extended to choosing death over life when facing terminal illnesses. The ECtHR recognised the Convention respected human dignity and freedom where medicine was evolving and lives were pro-longed, individuals shouldn’t be forced to stay alive in extreme circumstances. The HL’s maintained their decision in the Daniel James case and stated the DPP’s guidelines were more unhelpful than helpful. S.2 (4) wasn’t within the terms of Article 8 (2) and Article 8 (1) was breached. The DPP was required to publish an offence-specific assisted suicide policy document to provide certainty in prosecution decision-making. 

In the case of Pretty, the courts exercised a utilitarianism approach and sacrificed Mrs. Pretty’s autonomy interests for the greater good, to protect vulnerable people in society who may be coerced into giving up their life.  However in Purdy, they took both a utilitarianism approach but also respected Mrs. Purdy’s autonomous, self-determined choice to end her life. Ethical views on autonomous decisions determining whether a life has lost value are gaining momentous. The decision in the Purdy case had a wider public significance as more than 800 UK residents are members of Dignitas indicating people are contemplating suicide. The DPP has issued guidelines which enlists factors favouring prosecution and those tending against prosecution which has provided some clarity in the law regarding assisted suicide.The DPP’s guidelines included people who had been excluded under Lord Falconer’s Bill. The DPP made it clear legalising assisted suicide altogether was a matter for Parliament, which indicated support for the notion.

However, some argue the law can’t impose the quality of life threshold without engaging in value of life comparisons directed at not only individuals but groups of sufferers. It may lead to a slippery slope problem gradually turning controlled death from an option to an obligation. 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. 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 UK, 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. 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).

The ECtHR’s held in the leading case of Winterwerp v The Netherlands, 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. 

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 3 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.   

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. 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

6. Yorke J, The Right to Life and the Value of Life Orientations in Law, Politics and Ethics, Ashgate Publishing Limited, 2010

7. Tippett V, Medical Ethics and Law an introduction, Radcliffe Publishing Ltd, 2004

8. McLean A, Briefcase on Medical Law, Cavendish Publishing Limited, 2001

9. Foster N, Foster on EU LAW, Oxford University Press, 2009

10. Schwartz L, Preece E. P, Hendry A, R, Medical Ethics A Case-Based Approach, Elsevier Science Limited, 2002

11. Wear S, Informed Consent Patient Autonomy and Clinician Beneficence Within Health Care, Georgetown University Press, 1998

Journals:

1. Robson G, ‘In The Balance’,(2010), Criminal law & Justice Weekly

2. Mason K. J, ‘Case Commentary: What’s in a name?:The vagaries of Vo v France’, (2005), Child and Family Law Quarterly

3. Sifris R, ‘Restrictive Regulation of Abortion and the Right to Health – Restrictions on Abortion’, (2010), Medical Law Review

4. Morrison D, ‘Foster Book Reviews: Choosing Life, Choosing Death: the Tyranny of Autonomy in Medical Ethics and Law’, (2010), Medical Law Review

5. Heenan S, ‘IVF Treatment and Consent: The Rights of the Individual and the Public Interest, (2007), Family Law

6. Eijkhorl M, ‘The Right to Found a Family as a Stillborn Right to Procreate,(2010), Medical Law Review

7. Jackson E, ‘Degendering Reproduction’, (2008), Medical Law Review

8. Lind C, ‘Evans v United Kingdom- Judgments of Solomon: Power Gender and Procreation’, (2006), Child and Family Law Quarterly

9. Samiloff J,’ Whose Embryo Is It Anyway’, (2006), New Law Journal 

10. Alghrani A, Brazier M, ‘Book Review: From IVF to Immortality: Controversy in the Era of Reproductive Technology’, (2008), Medical Law Review

11. Prialux N, ‘Rethinking Progenitive Conflict: Why Reproductive Autonomy Matters’, (2008), Medical Law Review 

12. Williams G, ‘Assisted Suicide, the Code for Crown Prosecutors and the DPP’s Discretion’, (2010), Common Law World Review

13. Chahal S (actually represented Mrs. Purdy), ‘In Practice: Legal Update: Human Right’, (2009), Law Society Gazette

14. Wilson J, ‘Assisted Suicide Sentencing’, (2010), Criminal Law & Justice Weekly 

15. Cartwright N, ’48 Years on: Is The Suicide Act Fit for Purpose?’, (2009), Medical Law Review

16. Greasley K, ‘R (Purdy) v DPP and the Case of Willful Blindness’, (2010), Oxford Journal of Legal Studies

17. Turner A, ‘Killing the Suicide Act’, (2009), Criminal Law & Justice Weekly

18. Richardson G, ‘Mental Capacity at the Margin: The Interface Between Two Acts, (2010), Medical Law Review

19. Hale B, ‘What can the Human Rights Act 1998 do for my mental health?’, (2005), Child and Family Law Quarterly

20. Rayner J, ‘Mental Health Law Reform: Legal Mindfield’, (2007), Law Society Gazette

Cases:

1. St. Georges Healthcare NHS Trust v S; R v Collins and Others Ex p S (1998) Court of Appeal

2. Attorney General’s Reference (No 3 of 1994) (1998) HL

3. Paton v UK (1981) 3 E.H.R.R. 408

4. H v Norway (1992) 73 D.R. 155

5. Vo v France (2005) 10 E.H.R.R. 12

6. X v The United Kingdom (no.84116/79)

7. Evans v UK (2008) (No.6339/05) 46 E.H.R.R. 34

8. Pretty v The UK (Application no.2346/02) (2002) 35 E.H.R.R 1

9. R (on the application of Purdy) v Director of Public Prosecutions (DPP) (2009) EWCA Civ 92

10. HL v UK (45508/990 (2005) 40 E.H.R.R.32 L

11. Winterwerp v The Netherlands (1979) 2 E.H.R.R. 387

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