Autonomy and the competent patient's right to refuse life-prolonging medical treatment--again

This article discusses the recent decision of the Court of Appeal of the United Kingdom in Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449, which confirmed the common law right of a competent patient to refuse medical treatment, even though exercise of the right would (and later did) result in the patient's own death. Re B indicates that if a competent refusal is not respected, health professionals and hospitals face the prospect of awards of damages being made against them for unlawful trespass.     

The Human Rights Act 1998 and the individual's right to treatment

The right to demand treatment--even when life-saving--is not recognised by English common law. The courts have consistently stated that they do not have the jurisdiction to order a doctor to perform a particular treatment. This article considers whether the impending Human Rights Act 1998 can be interpreted so as to allow this right. While a general right to treatment is discussed the argument focuses on life-saving treatment. As an illustration, the David Glass case will be analysed and the impact of the Human Rights Act will be examined by considering how the judgment might have differed had the Act been in force.     

Problems with the Human Rights Act 1998 and How to Remedy Them: Is a Bill of Rights the Answer?

Recently there has been much discussion of the prospect of replacing, or supplementing, the Human Rights Act 1998 (HRA) with a British bill of rights. The Government, opposition Conservative Party and others have published detailed plans and research reports. Whilst there has been some limited examination of the alleged failures of the HRA in providing effective legal protection for human rights, the debate has not been accompanied by a thorough examination of these types of problems with the HRA, free from political criticisms. Drawing on research concerning aspects of the HRA carried out over the past ten years, it is possible to identify concrete problems which have prevented the HRA from meeting the objectives originally set for it. But given the limitations of the present debate, future plans do not adequately address many of these problems making it uncertain how effective any new bill of rights will actually be.     

Judicial Culture and the Politicolegal Opportunity Structure: Explaining Bill of Rights Legal Impact in New Zealand

This article argues that the cultural self-understandings of the judiciary can exert a profound effect on legal outcomes under a bill of rights. Utilizing the case of New Zealand, it demonstrates that confinement of expansive case law under the New Zealand Bill of Rights (NZBOR) to the criminal law and freedom of expression arenas is most significantly explained by a British-descended judicial culture that prioritizes, first, those civil liberty values already cognizable by the common law and, second, rights connected with the policing of parliamentary and legal processes. Nevertheless, judicial culture does not operate in a vacuum. Rather, the opportunity structure facing potential public interest litigants under NZBOR depends also on their politicolegal resource set including the attitude of the political branches (legislature and executive) to the claim being forwarded.