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Medical Law Review

Richard Huxtable, Giles Birchley
A modest, but growing, body of case law is developing around the (non-)treatment of patients in the minimally conscious state. We sought to explore the approaches that the courts take to these decisions. Using the results of a qualitative analysis, we identify five key features of the rulings to date. First, the judges appear keen to frame the cases in such a way that these are rightly matters for judicial determination. Secondly, the judges appraise the types and forms of expertise that enter the courtroom, seeming to prefer the 'objective' and 'scientific', and particularly the views of the doctors...
April 18, 2017: Medical Law Review
Lawrence O Gostin
The international community vastly underestimates the risk and scale of our shared vulnerability to fast moving pathogens. Ranging from SARS and novel influenzas to Ebola and Zika, the world seems to be caught off guard, despite the regularity of global health threats historically. More importantly, when governments and international institutions underestimate the threat, they also underinvest in preparedness. Failure to prepare has deep costs in human lives and economic productivity. Here, I offer a pathway to preparedness for, and rapid response to, infectious disease threats: robust and resilient national health systems; strong institutions capable of leading, particularly the World Health Organization; and investments in research and development...
April 17, 2017: Medical Law Review
I Glenn Cohen
We live in the age of globalization. In medicine, that globalization has brought many benefits such as the diffusion of technology and the spread of health care training, but it has also brought threats to biosecurity. This article examines how medical tourism and medical migration pose risks to biosecurity. It also argues that designing legal responses to these risks requires not only technical competence but also a theory of global justice to guide that design.
April 11, 2017: Medical Law Review
Belinda Bennett, Terry Carney
The declaration in 2009 that the H1N1 pandemic constituted a public health emergency of international concern (PHEIC) was the first such declaration under the revised International Health Regulations that were adopted in 2005. In the period since then PHEIC have been declared in relation to polio, Ebola, and Zika. This article evaluates initiatives that have been introduced globally, within the Asia-Pacific region, and within Australia, to strengthen preparedness for public health emergencies. Through analysis of evolving conceptualisations of risk, surveillance of zoonotic diseases, and development of public health capacities, the article argues that to date the global community has failed to make the necessary investments in health system strengthening, and that without these investments, global public health emergencies will continue to be an ongoing challenge...
March 31, 2017: Medical Law Review
Carolyn S Johnston
Wye Valley NHS Trust v Mr B [2015] EWCOP 60 illustrates the extent to which the wishes, feelings, beliefs, and values strongly expressed by a person who lacks decision-making capacity are to be considered in determining his best interests. Whilst not going as far as a supported decision-making model, as endorsed by the UN Convention on the Rights of Persons with Disabilities, the case exemplifies the participative ethos of the Mental Capacity Act 2005 and the requirement that the person lacking capacity should participate as fully as possible in any decision affecting him...
March 20, 2017: Medical Law Review
Thomas L Muinzer
No abstract text is available yet for this article.
February 27, 2017: Medical Law Review
Daria Kim
This article reflects on the state of play as regards access to non-summary clinical trial data in the European Union (EU). In particular, it examines the scope of access under the recent transparency policies of the European Medicines Agency (EMA) that attempt to break away from the presumptively confidential treatment of clinical trial data. In light of the emerging case law of the Court of Justice of the European Union on clinical trial data disclosure, it remains highly uncertain what data, and under what conditions, can be lawfully released by the EMA...
February 23, 2017: Medical Law Review
Fiona J Kelly, Deborah J Dempsey
An increasing number of Australian parents of donor-conceived children are making contact with their child's donor relatives prior to their child reaching the age of majority. This process, often referred to as 'donor linking', can be achieved in Australia through either formal or informal mechanisms. Formal mechanisms exist in three states, each of which has legislation enabling donor linking in certain circumstances. Donor linking may also be achieved through informal mechanisms, such as online donor registries, social media searches, direct-to-consumer genetic testing, and fertility clinics which act as intermediaries between donors and recipients...
January 30, 2017: Medical Law Review
Lanfang Fei, Zhou Peng
In 2005, China introduced an administrative no-fault one-time compensation scheme for adverse events following immunization (AEFI). The scheme aims to ensure fair compensation for those injured by adverse reactions following immunization. These individuals bear a significant burden for the benefits of widespread immunization. However, there is little empirical evidence of how the scheme has been implemented and how it functions in practice. The article aims to fill this gap. Based on an analysis of the legal basis of the scheme and of practical compensation cases, this article examines the structuring, function, and effects of the scheme; evaluates loopholes in the scheme; evaluates the extent to which the scheme has achieved its intended objectives; and discusses further development of the scheme...
February 1, 2017: Medical Law Review
Nicky Priaulx
The current contribution seeks to start a conversation around our pedagogical practice in respect of abortion law. Centralising the traditional portrayal of abortion law within the medical law curriculum, this essay highlights the privileging of a very particular storyline about abortion. Exploring the terrain in evaluating medical law methodologies, this essay highlights the illusion of 'balance', 'objectivity', and 'neutrality' that emerges from current pedagogy in light of how abortion law is framed and in particular what is excluded: women's own voices...
February 1, 2017: Medical Law Review
Emily Jackson, Jenni Millbank, Isabel Karpin, Anita Stuhmcke
Drawing upon the preliminary findings of an Australian empirical project on cross-border reproduction (CBR), this article argues that regulators and policymakers could learn from the experiences of those who travel overseas in order to access fertility treatment and surrogacy. It makes four principal observations. First, the distinction between so-called 'altruistic' and 'commercial' gamete donation and surrogacy is increasingly unsustainable and is not experienced as meaningful by many participants in CBR...
February 1, 2017: Medical Law Review
John Martyn Chamberlain
A recent Law Commission Review emphasised that medical fitness to practise panels (also called medical practitioners tribunals) are an important legal mechanism for ensuring that public trust in medical regulation is maintained when a complaint is made against a doctor. This article examines trends over time in panel outcomes to identify their effectiveness in ensuring public protection. Although a rise in complaints, and a change from the criminal to civil standard of proof, has not led to more doctors being struck off the medical register, increasingly action is being taken to provide advice, issue warnings, and agree rehabilitative forms of action with doctors...
February 1, 2017: Medical Law Review
Graeme Laurie
This article fundamentally challenges the way in which law currently regulates human health research. It invokes the anthropological concept of liminality-the quality of in-between-ness-to suggest deeper ways of understanding ongoing challenges in delivering acceptable and effective regulation of research involving human participants. In stark contrast to the structural regulatory spaces constructed by law, the metaphor of the liminal space is explored to explain what is lost through our failure to see health research regulation as an inherently human experiential process, involving potentially profound transformative events for participants and researchers alike...
February 1, 2017: Medical Law Review
Christian Enemark
An influenza pandemic would be a global health emergency, and laboratory-based research on influenza viruses is an important component of worldwide efforts to prevent and prepare for this. There are concerns, however, that publishing the findings of such research might sometimes increase the risk of a pandemic caused by a laboratory accident or the deliberate release of a deadly virus. This article addresses the challenge of governing scientific information sharing, with regard to public health benefits and risks, from an export-control perspective...
January 23, 2017: Medical Law Review
Bernadette J Richards, Michaela E Okninski
No abstract text is available yet for this article.
January 21, 2017: Medical Law Review
Emma Cave
Patients have a right to autonomy that encompasses making medical decisions that others consider 'bad'. The ambits of this right in law and clinical practice are explored in this article, which describes an expansion of welfare protections across different aspects of medical law and explores their justifications and implications. In England and Wales, the Mental Capacity Act 2005 sets out protections for those who fall within its definition of incapacity. Those who retain capacity are ostensibly free to make decisions others consider unwise...
January 12, 2017: Medical Law Review
Edward S Dove
No abstract text is available yet for this article.
January 6, 2017: Medical Law Review
Laura Pritchard-Jones
In recent years, dementia has been subjected to an increasing ethical, legal, and political gaze. This article analyses how the Court of Protection considers the perspective of the person with dementia when making best interests decisions on their behalf under the Mental Capacity Act 2005. The article draws upon feminist and disability literature to highlight how the Court has, on occasions, 'othered' the person with dementia during the process of making best interests decisions. This is despite law and policy increasingly emphasising that the views of the person who lacks capacity should be central to any best interests decision, as well as emphasising the importance of de-stigmatisation of cognitive impairments, such as dementia...
January 5, 2017: Medical Law Review
Melanie Newbould
In England and Wales, it is usually lawful for those with parental responsibility to consent to treatment on children who have not acquired legal capacity, providing that they are acting in the child's best interests. Whilst in most instances this process is unproblematic and the decisions made are non-controversial, there are troubling examples where this is more problematic. The difficulties for a family with a child who has an intersex condition will be considered to illustrate that there may be cases of medical and surgical treatment where even though both parents and doctors agree on a course of action in good faith, the treatment administered may not necessarily be in the best interests of the child...
January 5, 2017: Medical Law Review
Fiona de Londras
Under the Irish Constitution abortion is allowed only where the life of the pregnant woman is at risk. The provision in question, Article 40.3.3 (or the 8th Amendment) has long been criticised for failing to respect women's autonomy, and in Mellet v Ireland, the UN Human Rights Committee found that Amanda Jane Mellet, who travelled to Liverpool to access abortion following a finding that her foetus suffered a fatal abnormality, had suffered a violation of her rights under the International Covenant on Civil and Political Rights (ICCPR)...
December 27, 2016: Medical Law Review
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