Is it possible to have an effective legal safeguard within an inherently therapeutic context? This is the issue underlying a significant contrast in the way that similar provisions of the Mental Health Act 1983 (England and Wales) have been interpreted and applied in two different settings: in the purely legal setting of the High Court and by a judicial body in a hospital setting, namely, the Mental Health Review Tribunal.

Before dealing explicitly with the legal framework adopted by the 1983 act, I will briefly set out the kinds of strategies the law can employ to regulate behavior. One technique used in some areas of the law is to draw up an exhaustive list of rules and principles in an attempt to determine the outcome of cases. In this respect the law is concerned to achieve substantive justice; little discretion is vested in decision- makers. Alternatively, the law may confer complete discretion on decision-makers, and insist merely that the rules of natural justice be complied with in the process of making decisions.

Canadian mental health law has traditionally held many themes in common with the mental health law of other Commonwealth countries such as Britain, Australia, and New Zealand. Until recently, this body of law bore only a passing resemblance to the system of mental health law that has emerged in the United States.

The existence of an entrenched Bill of Rights in the United States has meant that many major issues relating to the rights of mental health patients have been dealt with as constitutional matters of great import. Consequently, the 1960s and 1970s witnessed the burgeoning of an exciting body of case law establishing a number of critical rights for a constituency that had hitherto been powerless and tragically neglected. While many of the rights established in the so-called landmark cases were subsequently limited in their scope or were just not affirmed by the appellate courts, the widespread use of constitutional challenges by mental health advocates wrought wholesale changes in both federal and state legislation and permanently altered the balance of power between mental health professionals and their patients.

The law has characteristically defended life and proscribed any act to end it, for whatever reason. But sustaining life is increasingly a medical question, and decisions to end it are now cast as “treatment” decisions. Some treatment decisions that leave basic biological needs unmet are clearly intended to end a life that is “over.” The provision of food and water has a particularly intimate association with the nursing function of nurturance and care. The surgeon general, in another context, has said that nourishment in all cases is “the bottom line” and that removal of sustenance is medical neglect per se. I intend here to explore two questions: Have the courts endorsed, and should they endorse, decisions by or substitute decisions for patients who choose intentionally to end their lives in health care settings? And what rights and duties do the hospital and professional staff have to decline to withdraw artificial feeding?

A pharmacist may be liable to a patient for negligence in filling a prescription, even if the pharmacist correctly fills the prescription as written by the prescribing physicion. The holding in Riff v. Morgan Pharmacy is that each member of the health care team “has a duty to be, to a limited extent, his brother's keeper.“ The court in Riff boldly and eloquently justifies this position by noting: