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Medical Law Review

Catherine Stanton
This commentary considers the General Medical Council's new guidance, Confidentiality: Good Practice in Handling Patient Information, which came into effect in April 2017. The commentary highlights some of the changes from the previous guidance and argues that, while some areas could have been developed further, the new guidelines are in general more detailed and user-friendly than previously, and will therefore be of benefit to practitioners. The commentary also highlights further developments on the horizon, such as new data protection legislation...
April 27, 2018: Medical Law Review
Andrew Harris, Andrew Walker
The article examines the decision-making process for medical reporting of deaths to a coroner and the statutory basis for coronial decisions whether to investigate. It analyses what is published about the consistency of decision making of coroners and discusses what should be the legal basis for determining whether a particular death is natural or unnatural in English law. There is a review of English case law, including the significance of Touche and Benton and the development of 'unnatural' as a term of art, which informs what the courts have held to be an unnatural death...
April 23, 2018: Medical Law Review
Thomas E Webb
Under section 23 of the Mental Health Act 1983 a person can be discharged by the managers of the hospital from compulsory care. The limited evidence indicates that the section 23 power is normally delegated to a specially appointed panel who hold a hearing. Unfortunately, notwithstanding the implications for the liberty, autonomy, and dignity of the compelled person, very little is known about how this process operates. Nonetheless, since 1996 there has been a sustained effort to abolish the power. In view of this, the proposal to reform the 1983 Act contained in the Queen's Speech January 2017, and the subsequent establishment of the Independent Review of the Mental Health Act in October 2017, I critique the claims made in the abolition debate, and establish the conceptual gaps therein...
April 20, 2018: Medical Law Review
Paul Skowron
Judges in England and Wales tell three apparently contradictory stories about the relationship between autonomy and mental capacity. Sometimes, capacity is autonomy's gatekeeper: those with capacity are autonomous, but those without capacity are not. Sometimes, capacity is necessary for autonomy but insufficient; for voluntariness, freedom from undue external influences is also required. Finally, sometimes autonomy survives incapacity, and a person without capacity is nevertheless treated as autonomous. These three accounts coexist, so no story of evolution, in which one account comes to replace another, can be told...
April 18, 2018: Medical Law Review
David R Lawrence, Margaret Brazier
Novel beings-intelligent, conscious life-forms sapient in the same way or greater than are human beings-are no longer the preserve of science fiction. Through technologies such as artificial general intelligence, synthetic genomics, gene printing, cognitive enhancement, advanced neuroscience, and more, they are becoming ever more likely and by some definitions may already be emerging. Consideration of the nature of intelligent, conscious novel beings such as those that may result from these technologies requires analysis of the concept of the 'reasonable creature in being' in English law, as well as of the right to life as founded in the European Convention on Human Rights and the attempts to endow human status on animals in recent years...
April 17, 2018: Medical Law Review
Sarah Devaney, Søren Holm
This article critically considers the question of whether an increase in legal recognition of patient autonomy culminating in the decision of the Supreme Court in Montgomery v Lanarkshire Health Board in 2015 has led to the death of deference to doctors, not only within the courts and healthcare regulatory arenas in England and Wales but also in the consulting room and the health care system more broadly. We argue that deference has not been eradicated, but that the types of deference paid to doctors and to the medical profession have changed...
April 12, 2018: Medical Law Review
Tsachi Keren-Paz
Recently in Shaw v Kovac, the Court of Appeal seemed to have rejected a standalone injury to autonomy (ITA) as actionable in negligence, in an informed consent case. In this article, I argue that Shaw can be explained away, and that English law recognizes ITA as actionable in a series of cases, some of which-Bhamra, Tracey, and Yearworth-were not hitherto understood to do so. However, the under-theorization in the cases leads to inconsistencies. Like cases (Rees/Yearworth; Chester/Tracey) are not treated alike; ITA is misunderstood to be about 'religious offence' (Bhamra) and property loss (Yearworth) and worse still, the more serious type 2 ITA (Rees) gives rise to a weaker remedy (of exceptional nature aside) than the less serious type 1 injury (Chester)...
April 10, 2018: Medical Law Review
Ruth Chadwick, Duncan Wilson
Bioethics emerged in a specific social and historical context. Its relationship to older traditions in medical ethics and to environmental ethics is an ongoing matter of debate. This article analyses the social, institutional, and economic factors that led to the development of bioethics in the UK in the 1980s, and the course it has taken since. We show how phenomena such as globalisation, the focus on 'ethical legal and social issues' and the empirical turn have affected the methods employed, and argue that ongoing controversies about the nature and possibility of ethical expertise will affect its future...
April 4, 2018: Medical Law Review
Beverley A Clough
This article explores the development of law and policy relating to mental capacity law, situating this within the context of the binaries that have driven this development. Whilst the story of this historical development is well worn, considering it through this lens allows some of the previously hidden problematic consequences of these binaries to come to the fore in our debates. The article will expose these issues through considering the binary between capacity and incapacity, and the interlinked binaries of empowerment/protection and autonomy/paternalism underpinning policies and debate in this area...
March 29, 2018: Medical Law Review
Muireann Quigley, Semande Ayihongbe
Using the metaphor and actuality of the 'everyday cyborg', this article makes the case that the law is ill-equipped to deal with challenges raised by the linking of the organic, biological person with synthetic, inorganic parts and devices. For instance, should internal medical devices that keep the person alive be viewed as part of the person or mere objects (or something else)? Is damage to neuro-prostheses (eg nervous system integrated limb prostheses) personal injury or damage to property? Who ought to control/own the software in implanted medical devices? And how should the law deal with risks around third-party device access (including that of unauthorised access and hacking)? We argue that satisfactorily answering such questions will likely require a re-analysis of the conceptual and philosophical underpinnings of the law, as well as the law itself...
February 22, 2018: Medical Law Review
Marianna Iliadou
This case note analyses the recent judgment of the European Court of Human Rights in Paradiso and Campanelli v Italy and examines its implications for cross-border surrogacy in Europe. It is argued that this judgment is highly significant, because it sets new standards in terms of the concept of family life under Article 8 of the European Convention on Human Rights. This judgment, it is argued, only appears to bring a halt to the (seemingly) backdoor legitimacy of commercial surrogacy established by the findings of the Second Section and previous judgments of the Court...
February 21, 2018: Medical Law Review
Craig Purshouse, Kate Bracegirdle
The fact that surrogacy contracts are unenforceable can cause problems if a surrogate decides that she wishes to keep the child. When this happens, the intended parents cannot bring a claim in contract compelling her to give the baby up to them or even for the return of money paid to the surrogate. Intuitively, it appears unfair that the surrogate can keep the child and the money while the intended parents are left with nothing. However, enforcing such contracts could be oppressive to the surrogate and detrimental to the child's welfare...
February 7, 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...
February 5, 2018: Medical Law Review
Laura R Smillie, Mark R Eccleston-Turner, Sarah L Cooper
This case commentary examines the CJEU's recent decision in C-621/15 W and Others v Sanofi Pasteur MSD SNC [2017] ECR I. This commentary critically examines the decision through the lens of the cultural conflict between law and science. We argue that the CJEU's decision reflects both a distortion of scientific knowledge and an improper indifference to the legitimate methods by which scientific knowledge is generated in the context of vaccines. These judicial approaches may, the authors argue, inadvertently fuel the vaccine scepticism that is growing across the developed world, and in particular in Europe...
February 1, 2018: Medical Law Review
Roy Gilbar, Charles Foster
No abstract text is available yet for this article.
February 1, 2018: Medical Law Review
Jaime Lindsey
RE and others concerned a clinical negligence claim against the Defendant NHS Trust by a baby injured during childbirth, as well by her mother and grandmother for psychiatric injury found to have been caused by those events. This commentary focuses on the claim for psychiatric injury by the mother and grandmother, both of which succeeded on the basis that the childbirth was a sufficiently shocking and horrifying event. This commentary urges caution about this development based on how it represents law's view of childbirth and the growth of claims that might result from any expansion of liability in this area...
February 1, 2018: Medical Law Review
Stevie S Martin
This article critically examines the decision of the New Zealand High Court in Seales v Attorney-General [2015] NZHC 1239, which rejected the claim that that country's blanket ban on assisted suicide violated various rights enshrined in the New Zealand Bill of Rights. That outcome runs contrary to the Canadian Supreme Court's decision in Carter v Canada (Attorney General) [2015] 1 SCR 331. This disparity in result arose despite overt similarities between the rights documents in each of the jurisdictions and, more significantly, notwithstanding the fact that the trial judge in Seales placed heavy reliance upon the decision in Carter...
February 1, 2018: Medical Law Review
Christine Beuermann
It is not uncommon for the duty of care owed by a hospital to its patients to be described as 'non-delegable'. Use of this label suggests that a hospital may be held strictly liable to a patient for the wrongdoing of a third party beyond the circumstances in which vicarious liability might be imposed. To date, no higher court has used the label to impose such liability. Notwithstanding, it was assumed by Lord Sumption in Woodland v Swimming Teachers Association that the duty of care owed by a hospital to a patient could be so described when formulating his test for determining the existence of a 'non-delegable duty of care'...
February 1, 2018: Medical Law Review
Victoria Chico, Mark J Taylor
The National Health Service in England and Wales is dependent upon the flow of confidential patient data. In the context of consent to the use of patient health data, insistence on the requirements of an 'informed' consent that are difficult to achieve will drive reliance on alternatives to consent. Here we argue that one can obtain a valid consent to the disclosure of confidential patient data, such that this disclosure would not amount to a breach of the common law duty of confidentiality, having provided less information than would typically be associated with an 'informed consent'...
February 1, 2018: Medical Law Review
David P Horton, Gary Lynch-Wood
Policy discourse and rhetoric that preceded the Health and Social Care Act (HSCA) 2012 suggests the Act was intended to further embed issues relating to accountability, transparency, and engagement with service-users. Close analysis suggests economic imperatives and independent expert authority are promoted to a greater extent than previous reforms, while stakeholder engagement and accountability appear weakened in crucial areas. To show this, the article considers two important and underexplored activities under the HSCA: reporting and other types of stakeholder engagement measures...
February 1, 2018: Medical Law Review
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