Article Figures & Data
Tables
Proportionality Clinical intervention should balance the severity of the effect of the intervention with the severity of the presenting clinical problem (i.e., it should be a proportionate response to a clinical scenario). Proportional interference When considering whether an interference with a convention right is proportionate, the burden lies on the state to justify its action. The interference must go no further than is strictly necessary to achieve its permitted purpose; the more substantial the interference the more that is required to justify it (i.e., a sliding-scale approach to its use). Proportionality test for the use of Article 8 What is the interest that is relied upon (i.e., private and family life, home and correspondence)? Does the interest correspond to a pressing social need? Is the interference proportionate to the interest? Are the reasons given by the suthorities relevant and sufficient? Main aim of Article 8 To protect the individual against arbitrary interference by the public authorities, but in doing so, to strike a fair balance between the interests of the individual and the interest of the community as a whole. Article 8 engagement The Court will first assess whether paragraph 1 applies, and if it does, Article 8 will be engaged; then the components of paragraph 2 will be analyzed to assess whether the Article has been violated. Article 8(2) violations There will be a violation unless the three criteria are met: the interference must be in accordance with the law, a necessity in a democratic society and in pursuit of one of the specified objectives. The onus is on the state to establish that these are met; otherwise there will be a breach. In accordance with the law This is a three-pronged notion: there must be a specific legal rule or regimen that authorizes the interference; the citizen must have adequate access to the law in question, and the law must be formulated with sufficient precision to enable the citizen to foresee the circumstances in which the law would or might be applied. Necessary in a democratic society This is a two-pronged notion and implies that an interference corresponds to a pressing social need and that it is proportionate to the legitimate goal. European institutions have stated that the typical features of a democratic society are pluralism, tolerance, and broadmindedness. Article 8 specified objectives These are national security, public safety, economic well-being of the country, prevention of disorder and crime, protection of health and morals, and protection of the rights and freedoms of others. These exceptions will be interpreted narrowly. Margin of appreciation Domestic states have different accepted clinical practices and standards; hence, the margin of appreciation is accepted as being very wide to reflect this. Therefore, clinical decisions which are proportional, therapeutically necessary and in keeping with accepted clinical practice are very unlikely to be outside this margin. Private life This concept covers the right to develop one's own personality and to create relationships with others. It contains both positive and negative aspects. Positive obligations The state has an obligation to provide for an effective respect for private life. Negative obligations The State should refrain from interference with a private life.
