Rights Theory

Question 1

Joseph Raz

Answer 1

‘The Morality of Freedom’ - Raz gives an influential account of rights, arguing that they are explained on the basis of corresponding duties. Rights are interests that are sufficiently serious/valuable to warrant the imposition of duties on others in order to protect those rights.

In the case of legal duties, the interests are so important that they require the imposition of legal duties on others, potentially backed by sanctions for non-compliance.

Purpose of rights = to explain the presence of duties.

Question 2

Raz - analysis in HC context

Answer 2

In HC context, if doctors owe duties to patients then this means that the rights-holder is the patient which the law is seeking to protect, rather than the general interests of society.

Thus, on Raz’s account rights are inherently patient-orientated and NOT dependent on the ethics of the profession. The duties that doctors have arise in consequence of those rights, not what doctors think the correct thing to do is.

Question 3

Control aspect of rights-based approach

Answer 3

Control is another important aspect of a rights-based approach to HC law.

• patient should define their interests since they belong to them, and thus set out what course of action is to be pursued;
• entails greater limits on clinical freedom, since restricts power and control of clinicians in favour of patients.

Question 4

Enforceability aspect of rights-based approach

Answer 4

Strong scheme of rights requires the ability to enforce those rights by some mechanism and have those rights vindicated if they are breached.

–> Finnis argues that a necessary criterion of rights is that there are legal remedies for breach of those rights.

• Bentham argued that natural rights were essentially meaningless and could only exist in a legal system as otherwise there is no enforcement mechanism.

Question 5

English law approach

Answer 5

Generally limited in relation to rights-based approach. E.g. Bolam - key thread of medical law which defers to the judgement of the medical profession, so long as it is a responsible body of medical opinion.

N v ACCG and James v Aintree - rebuts the patient-centred rights notion that patients can determine their treatment since it is their interest concerned on which doctors owe their duty.

Question 6

Exceptions in English law - more rights based approaches

Answer 6

1) Disclosure of risk - Montgomery v Lanarkshire Health Board. Subjective limb to doctor’s duty of disclosure - need to tailor disclosure to the needs of the patient. Shows patient gets to define their interest.
2) Death rights - legal system unfamiliar with explicit rights based framework has yielded to rights incrementally. In this context, it is through Art 8 ECHR

• Haas v Switzerland and Koch v Germany
• R (Purdy) v DPP
• R (Nicklinson) v DPP

Courts have gradually shifted since Pretty to the current position in which they are arguably trying to precipitate legal change to s 2(1) SA through legal mechanisms, e.g. s 4(2) HRA 1998.

Rather than leaving this sensitive issue solely to Parliament, courts are having greater influence on the law through becoming more receptive to rights-based arguments regarding AD.