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Medical Law Review

Tatiana Flessas, Emily Jackson
This article seeks to challenge the assumption that it is legitimate to consider the costs of premature babies' future social and educational needs when deciding what treatment, if any, to provide in the neonatal intensive care unit (NICU) . It questions the elision that is made between the claim that a particular treatment is insufficiently cost-effective and the claim that a person will be a burden on the state in the future. It discusses a series of common misunderstandings about how treatment decisions are taken in the NICU and concludes by suggesting that the claim that premature babies are too expensive to treat may depend upon regarding a premature infant as if she were not yet a person, with rights and interests of her own...
November 13, 2018: Medical Law Review
Rob Heywood
The law of negligence, as it applies to General Practitioners (GPs), is underexplored in the literature. There has been no substantial research undertaken that has penetrated deeper into claims that have actually reached court in order to analyse judicial reasoning pertaining to both breach of duty and causation. Given the increased pressures that GPs now face, these are important questions to consider. It is against this backdrop that this article seeks to present the findings of an empirical investigation into a number of reported clinical negligence claims brought against GPs...
October 11, 2018: Medical Law Review
Kenneth Veitch
This article explores the relationship between obligation and publicly funded healthcare. Taking the National Health Service (NHS) as the focal point of discussion, the article presents a historical analysis of the shifting nature and function of obligation as it relates to this institution. Specifically, and drawing inspiration from recent literature that takes seriously the notion of the tie or bond at the core of obligation, the article explores how the forms of social relation and bonds underpinning a system like the NHS have shifted across time...
October 1, 2018: Medical Law Review
Anniken Sørlie
Human rights discourse on the rights of transgender people has to a large extent focused on access to correction of legal gender and medical preconditions for this change. Jurisdictions across the world are now beginning to free legal gender recognition from medical interventions and examinations. State bodies have, however, done little to realise the rights of transgender people to adequate healthcare. A key issue is whether international law obliges states to ensure access to trans-specific healthcare. This article examines the right to healthcare appropriate to transgender persons' needs...
August 8, 2018: Medical Law Review
(no author information available yet)
No abstract text is available yet for this article.
August 1, 2018: Medical Law Review
Andrea Mulligan
Attitudes to surrogacy vary widely across Europe, leading to great variation in the domestic legal regimes of the Member States of the Council of Europe. Confronted with such diverse approaches, the European Court of Human Rights (ECtHR) faces a difficult task in seeking to apply Convention rights in the surrogacy context, which it has tackled in the recent cases of Mennesson v France and Paradiso and Campanelli v Italy. The primary purpose of this article is to propose an argument as to what the Convention requires of the Member States in the field of surrogacy...
August 1, 2018: Medical Law Review
Emma Cave, Emma Nottingham
When baby Charlie Gard was diagnosed with a rare mitochondrial disease, his parents located a Professor of Neurology in the USA willing to provide nucleoside therapy which offered a theoretical chance of improvement and successfully raised £1.3 million through crowd funding. The decision that unproven therapy was contrary to Charlie Gard's best interests and that life-sustaining treatment should be withdrawn was devastating for his parents and difficult for their supporters to comprehend. The decision was upheld at three levels of appeal and Charlie died in July 2017 aged 11 months...
August 1, 2018: Medical Law Review
Mark J Taylor, Edward S Dove, Graeme Laurie, David Townend
Draft regulatory guidance suggests that if the processing of a child's personal data begins with the consent of a parent, then there is a need to find and defend an enduring consent through the child's growing capacity and on to their maturity. We consider the implications for health research of the UK Information Commissioner's Office's (ICO) suggestion that the relevant test for maturity is the Gillick test, originally developed in the context of medical treatment. Noting the significance of the welfare principle to this test, we examine the implications for the responsibilities of a parent to act as proxy for their child...
August 1, 2018: Medical Law Review
Giles Birchley
Determining the best interests of incapacitated patients has been observed to be an opaque area of the law, and this is no less so in decisions about the (non-)treatment of patients in the minimally conscious state. A systematic examination of the way best interests are used in judgments relating to this population suggests that narratives involving the character of the patient frequently form an important plank of judicial reasoning. Since insights into the concept of best interests may be gained by an engagement with the philosophy of well-being, I identify the court's character-based approach with perfectionist theories of well-being...
August 1, 2018: Medical Law Review
Clark Hobson
Noel Conway has ultimately been granted permission to apply for judicial review, to seek a declaration under section 4(2) Human Rights Act 1998 that section 2(1) Suicide Act 1961 is incompatible with his right to respect for private life under Article 8(1) ECHR. Both decisions in the application process are significant. They attempt to deal with the qualitative elements in the reasoning of Lords Neuberger, Mance and Wilson, in Nicklinson v Ministry of Justice: what Parliament is required to have done to have 'satisfactorily addressed' the question of relaxing or modifying section 2(1) Suicide Act...
August 1, 2018: Medical Law Review
Mary Donnelly
THIS case commentary analyses the application of the best interests standard in section 4 of the Mental Capacity Act 2005 by the Court in the decision in Abertawe Bro Morgannwg University Local Health Board v RY (by his litigation friend the official solicitor) and CP [2017] EWCOP 2. It evaluates the way in which the law impacted on how clinical decisions in respect of RY were made and identifies systemic concerns arising from the case.
August 1, 2018: Medical Law Review
Richard Huxtable
In an apparent international first, the High Court has allowed a terminally ill 14-year-old to be cryopreserved after her death. The patient, JS, requested this, as she hoped one day to be reanimated and cured. Jackson J focused on the welfare (or best interests) of JS as she approached the end of her life and particularly on her (apparently) competent wish to be cryopreserved. I consider the interests involved in a decision to undergo cryonics, specifically exploring which interests and whose interests are engaged...
August 1, 2018: Medical Law Review
Rain Liivoja
Under international law, military medical personnel and facilities must be respected and protected in the event of an armed conflict. This special status only applies to personnel and facilities exclusively engaged in certain enumerated medical duties, especially the treatment of the wounded and sick, and the prevention of disease. Military medical personnel have, however, been called upon to engage in the biomedical enhancement of warfighters, as exemplified by the supply of central nervous system stimulants as a fatigue countermeasure...
August 1, 2018: Medical Law Review
Jillian Craigie, Ailsa Davies
This article investigates the ability of mental incapacity tests to account for problems of control, through a study of the approach to alcohol dependence and a comparison with the approach to anorexia nervosa, in England and Wales. The focus is on two areas of law where questions of legal and mental capacity arise for people who are alcohol dependent: decisions about treatment for alcohol dependence and diminished responsibility for a killing. The mental incapacity tests used in these legal contexts are importantly different-one involves a 'cognitive' test, while the other includes an explicit impaired-control limb-and the comparison provides insight into a longstanding debate about the virtues of one type of test over the other...
July 23, 2018: Medical Law Review
Kristof Van Assche, Kasper Raus, Bert Vanderhaegen, Sigrid Sterckx
In 2014, the Belgian Euthanasia Law was amended so as to extend the possibility of obtaining euthanasia to minors who have the capacity for discernment. The amendment led to considerable debate among Belgian legal experts, health care professionals and ethicists, in large part due to concerns about the scope and assessment of the minor's 'capacity for discernment', a concept first introduced in Belgian medical law by the amendment. This article offers a critical legal analysis of the concept of 'capacity for discernment' and its implications for euthanasia practice in Belgium...
July 2, 2018: Medical Law Review
Emilie Cloatre
This article explores the ambiguities of the legal system that, in France, regulates 'alternative healing', and determines the boundaries of legitimate medical care. While the law suggests that the delivery of therapeutic care should be the monopoly of biomedically-trained professionals, alternative healers operate very widely, and very openly, in France. They practice, however, on the verge of (il)legality, often organising their activities, individually and collectively, so as to limit the likelihood of state intervention...
June 27, 2018: Medical Law Review
Gemma Turton
If a patient suffers physical harm during medical treatment when a risk materialises which the doctor failed to warn the patient about, there are two key issues when a negligence claim is brought by the patient. First, it must be shown that the doctor was negligent in failing to warn the patient about the particular risk. Secondly, it must normally be shown that this failure to warn was a cause of the damage suffered, although courts also allow claims to succeed when a patient may still have undergone treatment even if adequately warned...
June 5, 2018: Medical Law Review
Marjolein Timmers, Evert-Ben Van Veen, Andrew I R Maas, Erwin J O Kompanje
There is an inherent tension between critical care research and data protection. Because of their condition it is not possible to ask for the patients' informed consent to be enrolled in observational research at the point of admission to the hospital. Often this is not possible at a later moment either. Yet informed consent is the baseline to be enrolled in research with personal data and exceptions must be allowed for by national legislation. This was the case under Directive 95/96/EC and will be the case under the General Data Protection Regulation (GDPR, Regulation 2016/679 EU) which will replace the Directive from 25 May 2018 onwards...
May 17, 2018: Medical Law Review
Alexandra Mullock
This commentary explores the Court of Appeal's decision in the case of Rose1 in order to assess the risk of liability for gross negligence manslaughter currently faced by the medical profession in the event that negligence causes the death of a patient. Subtly modifying the test established in Adomako,2Rose confirms that in order to be potentially liable, there must be a serious risk of death that was, rather than ought to have been, obvious/foreseeable to the defendant. Consequently, in more complex cases where the serious risk of death is not immediately obvious, negligently failing to assess risk seems to prevent potential liability on the basis that the putative defendant was in a position of negligent ignorance...
May 1, 2018: Medical Law Review
Margaret Brazier, Sarah Devaney, Alexandra Mullock
No abstract text is available yet for this article.
May 1, 2018: Medical Law Review
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