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This book provides a clear, concise description of medical law; but it does more than that. It also provides an introduction to the ethical principles that can be used to challenge or support the law. It also provides a range of perspectives from which to analyse the law: feminist, religious and sociological perspectives are all used.

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The law of informed consent to medical treatment has recently been extensively overhauled in England. The 2015 Montgomery judgment has done away with the long-held position that the information to be disclosed by doctors when obtaining valid consent from patients should be determined on the basis of what a reasonable body of medical opinion agree ought to be disclosed in the circumstances. The UK Supreme Court concluded that the information that is material to a patient’s decision should instead be judged (...) by reference to a new two-limbed test founded on the notions of the ‘reasonable person’ and the ‘particular patient’. The rationale outlined in Montgomery for this new test of materiality, and academic comment on the ruling’s significance, has focused on the central ethical importance that the law now accords to respect for patient autonomy in the process of obtaining consent from patients. In this paper, we dispute the claim that the new test of materiality articulated in Montgomery equates with respect for autonomy being given primacy in re-shaping the development of the law in this area. We also defend this position, arguing that our revised interpretation of Montgomery’s significance does not equate with a failure by the courts to give due legal consideration to what is owed to patients as autonomous decision-makers in the consent process. Instead, Montgomery correctly implies that doctors are ethically obliged to attend to a number of relevant ethical considerations in framing decisions about consent to treatment, which include subtle interpretations of the values of autonomy and well-being. Doctors should give appropriate consideration to how these values are fleshed out and balanced in context in order to specify precisely what information ought to be disclosed to a patient as a requirement of obtaining consent, and as a core component of shared decision-making within medical encounters more generally. (shrink)

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Knowledge is generally a good thing. People who know lots of bits of information are generally admired. Some of them win prizes in TV competitions. If you were offered the gift of having an entire encyclopedia wired into your brain, you would probably accept, without thinking. But we should be wary of assuming that all knowledge is good. Too much knowledge can inhibit rather than enable thought.

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In March 2020, the Government produced a document entitled “Responding to COVID-19: The Ethical Framework for Adult Social Care”(‘The Ethical Framework’). In this article, we summarise the key features of the proposed ethical framework and subject it to critical analysis. We highlight three primary issues. First, the emphasis placed on autonomy as the primary ethical principle. We argue if ever there was a context in which autonomy should dominate the ethical analysis, this is not it. Second, we examine the interface (...) between ethics and law which is largely overlooked in the document. Finally, we explore the surprising lack of attention paid to the concept of responsibility and communal obligations within the framework. (shrink)

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We are very grateful to Richard Ashcroft 1 and Andrew McGee 2 for their thoughtful and articulate criticisms of our views. 3 Ashcroft has disappointingly low aspirations for the law. Of course he is right to say that the law is not a ‘self-sufficient, integrated and self-interpreting system of doctrine’. The law is often philosophically incoherent and internally contradictory. But it does not follow from this that all areas of the law are philosophically unsatisfactory. And if that were true, the (...) response should not be Ashcroft’s contemptuous despair, but a determination to make it better. Ashcroft would say that such idealism is unrealistic in the light of the very nature of ‘the Law’: ‘...a complex assemblage of institutions, rules, accredited persons, practices and systems’. That isa radically ‘legal realist’ position and is plainly unsustainable. We can demonstrate its unsustainability while demonstrating both that he is wrong... (shrink)

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The idea of the Good Life – of what constitutes human thriving, is, implicitly, the foundation and justification of the law. The law exists to hold societies together; to hold in tension the rights of individuals as against individuals, the rights of individuals as against various types of non-humans such as corporations, and the rights of individuals individuals as against the state. In democratic states, laws inhibit some freedoms in the name of greater, or more desirable freedoms. The only justification (...) for law is surely that it tends to promote human thriving. But what is the Good Life? What does it mean to live a thriving life? There has been no want of discussion, at least since the great Athenians. But surprisingly, since human thriving is its sole raison d’etre, the law has been slow to contribute to the conversation. This book aims to start and facilitate this conversation. It aims to: -make lawyers ask: ‘What is the law for?’, and conclude that it is to maximise human thriving -make lawyers ask: ‘But what does human thriving mean?’ -make judges and advocates ask: ‘How can a judgment about the best interests of a patient be satisfactory unless its basis is made clear?’. (shrink)

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This article is an examination of the doctor–woman patient encounter through a vulnerability lens. This relationship has been traditionally been critiqued as a paternalistic encounter in which the...

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Under the current Mental Health Act of England and Wales, it is lawful to perform deep brain stimulation in the absence of consent and independent approval. We argue against the Care Quality Commission's preferred strategy of addressing this problematic issue, and offer recommendations for deep brain stimulation-specific provisions in a revised Mental Health Act.

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The “doctrine of double effect” has a pleasing ring to it. It is regarded by some as the cornerstone of any sound approach to end-of-life issues and by others as religious mumbo jumbo. Discussions about “the doctrine” often generate more heat than light. They are often conducted at cross-purposes and laced with footnotes from Leviticus.

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This article explores the effects of naming and describing disability in law and medicine. Instead of focusing on substantive issues like medical treatment or legal rights, it will address questions which arise in relation to the use of language itself. When a label which is attached to a disability is associated with a negative meaning, this can have a profound effect on the individual concerned and can create stigma. Overly negative descriptions of disabilities can be misleading, not only for the (...) individual, but also more broadly in society, if there are inaccurate perceptions about disability in the social context. This article will examine some relevant examples of terminology, where these issues arise. It will also suggest that the role of medicine and the law in naming and describing disability is particularly important because in these areas there is, perhaps more than anywhere else, a recognized source of authority for the choice of terminology. Labels and descriptions used in the medical and legal contexts can not only perpetuate existing stigmatization of disabled people, but can also contribute to creating stigma at its source, given that the words used in these contexts can constitute an exercise of power. (shrink)

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This article explores the current parenting culture, particularly the promotion of competitive and excessive parenting, as an important background issue against which the debates around pre-natal testing take place. It offers an alternative vision of parenting, relying on care ethics, which sees parenting as a relationship, rather than a job. A relationship that should change a parent’s understanding of what is valuable in life. Parenting should not be about moulding the ‘perfect child’ but being open to being profoundly changed. The (...) parent–child with a disability relationship offers particular opportunities to find new meanings and values in life. This analysis is offered as another dimension to the debates over pre-natal testing. It is not intended as an argument against such testing, but rather raises concerns about some of the broader attitudes around it. (shrink)

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This paper will explore the relevance of vulnerability to children’s rights. Broadly speaking legal debates over children can be broken down into two camps. First, those who emphasise the vulnerability of children. For them rights designed to protect children from abuse and promote their welfare are the most significant. Second, those who claim that children are far less vulnerable than is assumed and should be given many of the freedoms of adults. For them rights of autonomy and freedom should be (...) emphasised. This paper will argue that both camps make the error of starting with the norm of adulthood being a time of invulnerability and independence from which children are either distinguished or are closer to than is normally appreciated. Once it is recognised that adults share in children’s vulnerability, we can see that childhood vulnerability is not something which children should be enabled to escape from, nor is it something that is unique to children. Vulnerability and interdependence should form the basis of rights for both children and adults. There is, therefore, no reason why children and adults should not have the same rights. (shrink)

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If the law is to regulate the lives of those who suffer from depression, it is vital that lawyers understand the condition. This edited collection outlines the questions that arise from cases of depression by drawing together viewpoints from lawyers, philosophers, clinicians, and first-hand accounts from sufferers.

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Dementia is a topic of enormous human, medical, economic, legal and ethical importance. Its importance grows as more of us live longer. The legal and ethical problems it raises are complex, intertwined and under-discussed. This book brings together contributions from clinicians, lawyers and ethicists – all of them world leaders in the field of dementia – and is a comprehensive, scholarly yet accessible library of all the main (and many of the fringe) perspectives. It begins with the medical facts: what (...) is dementia? Who gets it? What are the current and future therapeutic and palliative options? What are the main challenges for medical and nursing care? The story is then taken up by the ethicists, who grapple with questions such as: is it legitimate to lie to dementia patients if that is a kind thing to do? Who is the person whose memory, preferences and personality have all been transformed by their disease? Should any constraints be placed on the sexual activity of patients? Are GPS tracking devices an unpardonable interference with the patient's freedom? These issues, and many more, are then examined through legal lenses. The book closes with accounts from dementia sufferers and their carers. It is the first and only book of its kind, and the authoritative text. (shrink)

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The contributions in this volume represent a detailed exploration of the salient legal and theoretical puzzles arising out of the body-as-property question, and a collation of the broad spectrum of analyses on offer.

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In the wake of three high-profile judicial decisions concerning the use of human biological materials, the editors of this collection felt in 2011 that there was a need for detailed scholarly exploration of the ethical and legal implications of these decisions. For centuries, it seemed that in Australia and England and Wales, individuals did not have any proprietary interests in their excised tissue. Others might acquire such interests, but there had been no clear decision on the rights or otherwise of (...) the persons from whom the tissue was obtained. In 2009, however, the Court of Appeal of England and Wales recognised a limited exception to this position in Jonathan Yearworth and others v North Bristol NHS Trust . In that case, the Court held that the appellants, who had deposited semen samples for freezing before they undertook treatment for cancer, had “for the purposes of a claim in negligence … ownership of the sperm which they had ejaculated”. One year later, the Supreme Court of Queensland, Australia, took a similarly property-based approach to determining how a semen sample stored shortly before death should be dealt in Bazley v Wesley Monash IVF . According to that court, the co-executors of the estate had sufficient proprietary interests in the semen to legally demand its return from the laboratory where it was held. In 2011, the New South Wales Supreme Court similarly found that the widow of a recently deceased man had a right to possession of his semen in Joceyln Edwards; Re the estate of the late Mark Edwards .In the editors’ view, these decisions signalled a turning point in the Anglo-Australian jurisprudence in this area, taking the law a step beyond the decisions of the late 20th century such as R v Kelly , in which possessory rights were found …. (shrink)

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In the original publication of the article, the title of the article was incorrectly published. It has been updated in this correction.

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This article argues against the case for regarding bodies and parts of bodies to be property. It claims that doing so assumes an individualistic conception of the body. It fails to acknowledge that our bodies are made up of non-human material; are unbounded; constantly changing and deeply interconnected with other bodies. It also argues that holding that our bodies are property does not recognise the fact that we have different attitudes towards different parts of our removed bodies and the contexts (...) of their removal. The appropriate legal reform should, therefore, be to produce a statute which can provide a balance between the competing personal, social and interpersonal interests in different body parts. (shrink)

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Part 1. Foundations -- Reasoning about ethics -- Ethical theories and perspectives -- Three core concepts in medical ethics : best interests, autonomy and rights -- An introduction to law -- Doctors and patients : relationships and responsiblities -- Part 2. Core topics -- Consent -- Capacity -- Mental health -- Confidentiality -- Resource allocation -- Children and young people -- Disability and disease -- Reproductive medicine -- End of life -- Organ transplantation -- Research -- Part 3. Extensions -- (...) Neuroethics -- Genethics -- Information ethics -- Public health ethics. (shrink)

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Healthcare professionals are expected to deliver care that is consistent with clinical guidelines. In this article, we show that the English courts are increasingly willing to be persuaded by written guidelines when determining the standard of care in cases of alleged clinical negligence. This reflects a wider shift in the approach taken by courts in a number of common law jurisdictions around the world. However, we argue that written guidelines are still only one element that courts should consider when determining (...) the standard of care. It is possible to deliver perfect care that deviates from professional guidelines and even to deliver negligent care by uncritically following a guideline that is flawed. We further argue that written guidelines are relevant beyond defining the accepted standard of care. This is because the decision to deviate from a guideline suggests the existence of multiple approaches that should be discussed with patients as part of ensuring informed consent. It is therefore likely that written guidelines will become an even more prominent feature of the medicolegal landscape in future years. (shrink)

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This is the first book to unpack the legal and ethical issues surrounding unauthorised intimate examinations during labour. The book uses feminist, socio-legal and philosophical tools to explore the issues of power, vulnerability and autonomy. The collection challenges the perception that the law adequately addresses different manifestations of unauthorised medical touch through the lens of women's experiences of unauthorised vaginal examinations during labour. The book unearths several broader themes that are of huge significance to lawyers and healthcare professionals such as (...) the legal status of women and their bodies. The book raises questions about women's experiences during childbirth in hospital settings. It explores the status of women's bodies during labour and childbirth where too easily they become objectified, and it raises important issues around consent. The book highlights links to the law on sexual offences and women's loss of power under the medical gaze. The book includes contributions from leading feminist philosophers, medical professionals, and academics in medicine and law, and offers pioneering analysis relevant to lawyers and healthcare professionals with an interest in medical law and ethics; feminist theory; criminal law; tort law; and human rights law. (shrink)

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The law tends to think that there is no difficulty about identifying humans. When someone is born, her name is entered into a statutory register. She is ‘X’ in the eyes of the law. At some point, ‘X’ will die and her name will be recorded in another register. If anyone suggested that the second X was not the same as the first, the suggestion would be met with bewilderment. During X's lifetime, the civil law assumed that the X who (...) entered into a contract was the same person who breached it. The criminal law assumed that X, at the age of 80, was liable for criminal offences ‘she’ committed at the age of 18. This accords with the way we talk. ‘She's not herself today’, we say; or ‘When he killed his wife he wasn't in his right mind’. The intuition has high authority: ‘To thine own self... (shrink)

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