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Medical Law Review

Jaime Lindsey
This article analyses the role of evidence in resolving Court of Protection proceedings, drawing on qualitative data obtained from observations of the Court of Protection, a review of Court of Protection case files and interviews with social workers. It is argued that there is a hierarchy of professional evidence in mental capacity law. Psychiatric evidence is at the top of this hierarchy, whereas social work evidence is viewed as a less persuasive form of knowledge about mental capacity. The article argues that this is because mental capacity law views psychiatric evidence as a form of objective and technical expertise about capacity, whereas social work evidence is viewed as a form of subjective, experiential knowledge...
February 11, 2019: Medical Law Review
Louise V Austin
In Hii Chii Kok v (1) Ooi Peng Jin London Lucien; (2) National Cancer Centre, the Singapore Court of Appeal followed the approach of other Commonwealth jurisdictions by rejecting the application of Bolam as the standard of disclosure in claims concerning informed consent to medical treatment. Instead, the court employed a modified version of the standard of disclosure adopted in Montgomery v Lanarkshire Health Board. While broadly welcomed, Montgomery has been criticised for its lack of clarity on the application of some elements of its disclosure standard...
January 28, 2019: Medical Law Review
Jenni Millbank
Australian medical professionals whose patients undertake assisted reproductive treatment abroad face a conflict: to try to provide optimal and on-going care for their patient at the same time as ensuring compliance with Australian legal, ethical, and professional rules which proscribe as unsafe or unethical key aspects of such treatment.A major suggestion from literature on medical travel is that risks to the patient can be mitigated through the involvement of the local professional. However, the force of legal regulation and ethical guidance in Australia strenuously directs clinicians away from involvement in overseas reproductive treatment...
January 25, 2019: Medical Law Review
Mathijs Van Westendorp, Steven Lierman
Prisoners are often excluded from participating in clinical research (ie clinical trials and clinical investigations related to medicinal products and medical devices) due to the historical precedent of their abuse and exploitation. The exclusion of prisoners from clinical research is often deemed necessary to guarantee their protection from such abuse and exploitation. However, in this article, we argue that the right to science, which encompasses the right to access the benefits of science and research participation, is an emerging human right that is applicable to prisoners and may only be limited when this is necessary and proportionate...
January 21, 2019: Medical Law Review
Elizabeth Wicks
In An NHS Trust and others v Y and another, the Supreme Court was asked to address the question of whether a court order must always be obtained before clinically assisted nutrition and hydration (CANH), which is keeping alive a person with a prolonged disorder of consciousness (PDOC). This case note explores the Court's decision to dispense with the need for such a court order and analyses that important change in approach from the perspective of the right to life protected in Article 2 European Convention on Human Rights (ECHR) as well as in the broader context of end of life decision-making...
January 15, 2019: Medical Law Review
Craig Purshouse
In Darnley v Croydon Health Services NHS Trust [2018] UKSC 50, the Supreme Court held that a hospital receptionist's misleading statement about A&E waiting times constituted a breach of duty and that the claimant's decision, based on this misinformation, to leave the hospital did not break the chain of causation when he was left paralysed as a result of a head injury. In this commentary, I argue that while the Supreme Court's treatment of duty of care and breach is, for the most part, a model of doctrinal clarity, its treatment of the causation issue is problematic as it elides the test of whether there has been a break in the chain of causation with that for remoteness...
December 27, 2018: Medical Law Review
Jameson Garland, Santa Slokenberga
Nonconsensual gender-conforming interventions on children with intersex conditions have recently come under sharp criticism from human rights authorities within the United Nations, the Council of Europe, and the European Union, which have identified these interventions as violating children's rights to bodily integrity, privacy, and protection from violence, torture, and degrading treatment. Responding largely to requests for intervention from nongovernmental organizations, these authorities have called upon nations to reform their legal frameworks, both to prevent these rights violations and to redress them...
December 13, 2018: 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
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)...
November 1, 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...
November 1, 2018: Medical Law Review
John B Dawson
How should the mental element be defined in the legal standards governing a person's 'sectioning' or placement under the Mental Health Act (MHA)? This article considers how this mental element is defined in many MHAs in Australasia: via a statutory list of disorders of mental function said to 'characterise' the necessary state of mind. This article assesses the assumptions behind the adoption of this approach. It discusses the views of several English law reform committees that have explored how the mental element should be defined...
November 1, 2018: Medical Law Review
Jo Samanta, Ash Samanta
Decisions to withdraw clinically assisted nutrition and hydration (CANH) from people in the minimally conscious state are predicated on the question as to whether it is in the individual's best interests to continue with CANH and determined traditionally using a 'balance sheet' approach. The emerging case law in this area suggests that decisions may appear inconsistent and lack sufficient certainty and clarity of process. Using an analysis of statute, common law and academic commentary we articulate a typology for the elements that tend to engage in these decisions...
November 1, 2018: Medical Law Review
Aleydis Nissen
This article argues that the European Court of Human Rights (ECtHR) seems to have recently acknowledged that there is a right to access to emergency health care in the member states of the Council of Europe. The Chamber of the ECtHR found that a state's failure to design a regulatory framework that guarantees access to health care in emergency situations violates the substantial limb of Article 2 European Convention on Human Rights (ECHR) that protects the right to life. It is argued that the newly established requirements seem to be reasonable but that there seem to be no sufficient safeguards to ensure that the ECtHR does not substitute its own assessment for that of medical professionals...
November 1, 2018: Medical Law Review
Louise V Austin
In Montgomery v Lanarkshire Health Board [2015] UKSC 11 the Supreme Court redefined the standard of disclosure in informed consent to medical treatment, rejecting the application of the doctor-focused Bolam standard in favour of one focused on what was significant to patients. In Grimstone v Epsom and St Helier University Hospitals NHS Trust [2015] EWHC 3756 (QB), despite acknowledging a new standard now applied, McGowan J nevertheless used the Bolam test to determine liability for non-disclosure. This illustrates ongoing judicial deference to the medical profession and this case commentary explores that decision and its implications...
November 1, 2018: Medical Law Review
Craig Purshouse
In ACB v Thomson Medical Pte Ltd [2017] SGCA 20 and Shaw v Kovak [2017] EWCA Civ 1028, the idea that 'lost autonomy' should be recognised as a new form of actionable damage in the tort of negligence was rejected in Singapore and England, respectively. This, it will be argued, was the correct outcome. Protecting an interest in autonomy via the tort of negligence would undermine the coherence of that tort. In ACB, however, a new, different, form of damage was recognised: loss of 'genetic affinity'. This commentary will discuss some problems that protecting an interest in 'genetic affinity' raises before critiquing the approach to assessing damages in ACB...
November 1, 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
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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
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