ADMINISTRATIVE LAW

Administrative Law

Administrative Law

Standing

In this case both X and Y have been reviewed by their private psychologists. The opinion of these psychologists is of considerable importance. Furthermore both X and Y are mentally capable of making decision regarding their sexual preference. Dr. Savage's refusal for permitting them from making these choices and exercising their right is in breach of administrative law. As a mental health consumer advocate, Deegan (1999) suggests that the sexual activity is not the problem; rather the problem is the failure of the facility to allow for private and dignified expression of sexuality. Sexual activity is often prohibited by organizational policy, ignored by staff, or at times dealt with in ways that cause humiliation or increased restrictions for the residents involved (Buckley & Robben, 2000). The issue of consensual sexual relationships between adults with SPMI becomes a highly charged, emotional issue. Questions of competency, morality, and liability abound. It is in this atmosphere that decision-makers in psychiatric facilities must address the issues involved in balancing patient rights with the responsibility of protecting the resident population. It is paramount for decision-makers to distinguish between the needs of long and short-term residents of psychiatric facilities. Mossman, Perlin, and Dorfman (1997) state “long-term facilities must respond to different needs and conditions to allow patients opportunity for dignified living” (p. 454). Ford, Rosenberg, Holsten and Boudreaux (2003) also make a clear distinction in the different issues involved in managing sexual behavior in acute care adult inpatient units. The focus of this study is on decisions made about the development and implementation of sexual policies in long-term facilities. 

Amenability

Administrative law is the body of rules under which the courts examine the legality of bureaucratic decision making. When courts are asked to review a decision made by government bodies they are limited to reviewing the legality of the process of decision making and are not allowed to examine the actual merits of the case. To do this the courts examine the powers of the decision maker and the requirements of statute and regulation to see if the decision maker acted unfairly or outside his or her bounds. In that sense administrative law is concerned with the decision making process rather than the outcome of that process. Courts are also forbidden to examine the worthiness of the policies behind particular decisions unless a policy is itself beyond power or in contravention of law.

Private life has previously been held by the European Court of Human Rights to include sexual orientation and a recent EAT Case (MacDonald -v- Ministry of Defence EAT121/00) seems likely to protect employees from discrimination on the grounds of sexual orientation.

The EAT has decided that the Sex Discrimination Act must be interpreted to comply with the European Convention on Human Rights (ECHR) and that in order to do this that the word "sex" in the Act should be interpreted to include "on grounds of sexual orientation". The appropriate comparitor, in the view of the EAT, for a homosexual man who claimed discrimination related to sexual orientation is a heterosexual woman. The right to be free from torture or cruel, inhuman or degrading treatment is infringed upon by police practices, ...