As is so often the case in a common law system, the legal protection conferred by one strand of law is undermined by other legal provisions. There is no blanket legal duty which compels health care professionals to undergo HIV/AIDS tests; on the other hand, appropriately drafted contracts of employment, duties imposed by courts on employees and the risk of litigation by patients with pressurise individual workers to submit to testing. Whereas in Italy the law clearly condemned any compulsory testing (...) of health care workeers, but must now be interpreted to support it, in England and Wales each individual worker's case must be examined in order to determine whether testing must be submitted to. (shrink)

One probable success (the case of Mrs Tonge) is not a great deal to set against the courts' overwhelming reluctance to play a part in challenging resource allocation decisions. Nevertheless, where such decisions are inherently unreasonable—for example, as Margaret Brazier has suggested,11 a refusal to treat patients because they are divorced, or because they are Labour Party members—a remedy would be available through the courts. Presumably gender biased rationing decisions would similarly be susceptible to judicial review, although there might be (...) evidential difficulties. Age-related denial of treatment would probably not in itself be considered to be ‘Wednesbury unreasonable’. If it could be shown that within the one health authority a particular patient or a group at a set age were denied treatment others at the same age received, there might be scope for an application to the courts. Evidence sufficient to satisfy judges ‘notoriously unwilling to overturn doctors' decisions’11 would be hard to collect.While courts cannot be expected to determine health care policy, their refusal to examine in any detail the decision-making processes of Health Service authorities has ratified ‘the opacity of current decision-making’.12 Instead of forcing authorities to take decisions in a reasoned and justified manner, the courts by their very conservative application of the Wednesbury decision have allowed them to hide from public scrutiny. (shrink)

The legal regulation of standards of medical practice has two main forms. The more direct of these comprises legislation and judicial precedents concerned with the delivery of medical care. Typically this form sets out the meaning of consent to treatment, establishes negligence thresholds and imposes duties of confidentiality. The second form of regulation is entrusted to a supervisory body, established by law and given jurisdiction to enforce standards of conduct by controlling entry to the profession and through the use of (...) disciplinary powers. (shrink)

As long as it remains mental health policy to offer care in the community rather than longterm hospitalisation, attention should focus on securing safe and supportive environments both for patients themselves and for their interactions with other members of the community. Yet such environments have proved hard to create and service users, providers and the wider public have recognised the isolation in which several patients live, the poor risk management, the lack of liaison between professionals, and state reluctance to resource (...) the policy. (shrink)