This chapter examines the law on abortion, beginning with debates over the moral legitimacy of abortion. It then examines the current legal position, and considers how the Abortion Act 1967, as amended, works in practice, as well as considering the prospects for law reform. Finally, the chapter looks briefly at the regulation of abortion in Northern Ireland, Ireland, and the United States.
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14. Abortion
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5. Abortion and prenatal harm
This chapter is concerned with the statutory provisions governing abortion and prenatal harm. It considers the offence of abortion under sections 58 and 59 of the Offences against the Person Act 1861 and section 1(1) of the Infant Life (Preservation) Act 1929 and the defences available prior to the Abortion Act 1967. It discusses the ethical debates concerning abortion, exploring ‘right-to-life’ arguments and rights of parties such as the foetus and the father. It also looks at the court’s approach towards adult women who lack capacity, before concluding with an analysis of actions for prenatal harm, namely, wrongful birth, wrongful conception, prenatal injury, and wrongful life. Relevant cases are cited.
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15. Assisted Conception
This chapter examines the regulation of assisted conception in the UK, which involves a detailed look at the legislation: the Human Fertilisation and Embryology Act 1990, and the work of the Human Fertilisation and Embryology Authority (HFEA). It examines: the licensing procedures through which clinics are inspected and authorized to perform certain procedures; access to treatment; consent to the use of gametes (sperm and eggs); gamete donation; rules governing the parentage of children; and preimplantation genetic diagnosis (PGD). It also considers mitochondrial transfer and genome editing.
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17. Assisted Dying
This chapter examines assisted dying. It looks at the current law, and arguments for and against its reform. It covers attempts to change the law in parliament and through human rights challenges in the courts. There is also brief coverage of other jurisdictions’ experience with legalization.
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16. Assisted Reproduction
A. M. Farrell and E. S. Dove
This chapter discusses ethical and legal aspects of control of assisted reproduction in the UK. It begins with the regulation of assisted reproduction, including the creation, use, and disposal of gametes and embryos. Access to assisted reproduction technologies is examined, looking at artificial insemination and gamete donation more broadly. The chapter then goes on to consider the legal position of surrogacy and commercial surrogacy in particular, as well as the relationship between assisted reproduction and parenthood. Posthumous parenthood and also adoption are looked at, and the chapter then concludes by looking at embryo research and the future of assisted reproduction.
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6. Assisted reproduction
This chapter deals with the statutory provisions governing assisted reproduction, with particular reference to the Human Fertilisation and Embryology Act 1990 (as amended) and the Human Fertilisation and Embryology Authority. It also explores the issue of access to services and whether these are available on the National Health Service, together with the ethical and legal issues surrounding the use and storage of gametes and embryos, surrogacy arrangements, and screening of embryos. Relevant cases are considered, where appropriate.
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20. Biomedical Human Research and Experimentation
G. T. Laurie, S. H. E. Harmon, and E. S. Dove
This chapter discusses ethical and legal aspects of biomedical research. After highlighting the evolution and acceleration of rule-making in this setting, it differentiates between research and experimentation, and articulates a core regulatory concept, namely risk. It then covers ethical codes and legal instruments in human biomedical research, research ethics committees, randomised controlled trials, and experimental treatment, paying particular attention to informed consent and research involving people lacking capacity. It also addresses the unethical researcher, compensation for personal injury in research, research involving human tissue and personal data, and new approaches to research governance.
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14. The Body as Property
A. M. Farrell and E. S. Dove
This chapter explores the debates that have arisen in relation to questions of ownership and control of our bodies, and what we are (or should be) able to do, with our separated human body parts and tissue. In recent years, this debate has centred on the status of the body as property, key aspects of which are examined in this chapter. In order to explore the parameters of this debate, the chapter proceeds with first identifying key terms, before moving on to examine key concepts such as ownership, control, and commodification; various property models in human tissue; and a comparative overview of jurisprudence addressing questions of trade and property in human tissue. Thereafter, an examination is provided of key UK case law which engages with the property approach in human tissue, covering reproductive material, the embryo, and the dead body, by way of example. The final section briefly examines intellectual property in human tissue.
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15. The Body as Property
G. T. Laurie, S. H. E. Harmon, and E. S. Dove
This chapter examines the question of the limits set on our right to control our bodies or parts thereof. This debate has centred on the very important issue of our relationship with our body, and the status of the body, which has most recently been shaped by ideas of property. The chapter considers three aspects of that debate: property in material taken from living persons; property in material taken from cadavers; and the granting of intellectual property rights in human material.
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9. Children and Consent to Medical Treatment
A. M. Farrell and E. S. Dove
This chapter examines the law involving capacity to consent to medical treatment on the part of children and young people. An overview is first provided of key legislation and the role of the courts in the area. Thereafter, the concept of Gillick competence is then examined. Post-Gillick case law is explored in select areas, including refusals of medical treatment, objections to treatment due to religious beliefs, other welfare considerations, gender identity, and the care of critically ill young children. The final section briefly reflects on the role of human rights in promoting the autonomy of children and young people in decision-making about their own health care and how this has been interpreted by the courts.
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5. Children and Medicine
This chapter explores how the law deals with cases involving children receiving medical care. It considers the circumstances in which children have capacity to consent to treatment. It explores the case law in cases where there is disagreement between parents and children over health care. It also looks at difficult cases where parents and doctors disagree on how to treat very sick children. The way the courts interpret the best interests of the child are examined. The chapter also explores the ethical and legal issues around the vaccination of children. The broader issue of whether there should be limits on the rights of children and the extent to which parents can determine what is in the best interests of the child are examined.
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11. Civil and Criminal Liability in Reproductive Medicine
G. T. Laurie, S. H. E. Harmon, and E. S. Dove
This chapter discusses: the nature of the duty of care in the action for wrongful pregnancy; legal action for wrongful birth; wrongful (or diminished) life actions; and wrongful injury to the fetus and feticide.
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6. Civil Detention under the Mental Health Act 1983
This chapter examines detention under the Mental Health Act 1983 of people who have not become involved with the criminal system. It shows that traditional justifications for detention have focused on dangerousness to self or others and the need for care and treatment. In recent years a new model has emerged, advocating the combination of mental capacity law and mental health law; and the new United Nations Convention on the Rights of Persons with Disabilities also raises a whole new set of questions about compulsion and detention.
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12. Clinical Negligence
A. M. Farrell and E. S. Dove
This chapter examines the law of clinical negligence. First, the key elements of making a claim in the tort of negligence are outlined. Examples are then drawn from existing case law in clinical negligence, including the use of innovative techniques, complementary medicine, misdiagnosis, the problem of the novice, negligence in treatment and protecting patients from themselves, as well as wrongful conception, birth, and life claims. The doctrine of res ipsa loquitur is also briefly considered. Thereafter, an overview is provided of key aspects of criminal negligence, before moving on to examine alternatives to clinical negligence litigation, including recent proposals for reform such as the creation of no-fault schemes for medical injury.
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10. Clinical Research
This chapter first summarizes the rules governing experiments on animals. It then examines international codes of research ethics and the UK’s regulatory system; the role of ethics committees in authorizing and monitoring research; whether the benefits and burdens of research participation are evenly distributed; conflicts of interests and publication ethics; and compensation for injuries sustained as a result of participation in research.
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3. Community Care
This chapter examines the delivery of community care services. It discusses services for mentally disordered persons; the entitlement, nature, and scope of the duties owed under the National Health Service and Community Care Act (NHSCCA 1990); alternative mechanisms for securing services; and the use of personal budgets and direct payments. The chapter argues that most of the time, local social service authorities and National Health Service bodies do cooperate reasonably well in the delivery of community care services, particularly for service users with learning disabilities. The draft the Care and Support Bill holds the potential to radically simplify the legal framework in which community care services are delivered, making the system more transparent and intelligible to both users and professionals. The increased use of personal budgets and direct payments could empower service users in a way that has not been possible in the past.
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1. Conceptualising Mental Health Law
This chapter begins with brief descriptions of the Mental Health Act 1983 (MHA) and the Mental Capacity Act 2005 (MCA), and then discusses who the insane; the complex relationship between mental illness and medicine; the statutory definition of mental disorder and the scope of the MHA; mental health care; and sources of mental health law.
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7. Confidentiality
This chapter examines the legal and ethical aspects of medical confidentiality. The discussion includes the legal basis of confidentiality; defences to claims of breach of confidentiality; the Data Protection Act 1998; legal remedies in confidentiality cases; patient access to their own health information; and ethical arguments for and against confidentiality. Underpinning this chapter is the tension between requiring that a patient’s confidences are kept and the fact that sometimes there is an overwhelming reason why confidentiality needs to be breached. A further difficulty for this topic is that once confidentiality has been breached it can be very difficult to formulate an effective legal remedy.
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4. Confidentiality and access to medical records
This chapter examines confidentiality as a fundamental aspect of doctor–patient relationships: its ethical basis and equitable, contractual, and tortious obligations. It then considers the law governing access to medical records and statute that necessitates fair and lawful processing of sensitive personal data and the EU General Data Protection Regulation aimed at harmonising data protection legislation. It discusses exceptions to the duty of confidentiality, including explicit and implied consent, prevention of harm to others, police investigation, public interests, and press freedom. The chapter considers confidentiality with respect to children; adults who lack capacity and deceased patients; remedies available for breach of confidence; access to electronic patient records; and issues raised by genetics-related information.
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8. Confidentiality and Data
This chapter examines the ethical justifications for protecting patient confidentiality. It then discusses the different legal sources of the duty of confidence; exceptions to the duty of confidence; and the remedies available for its breach. It briefly considers patients’ rights to gain access to their medical records. Finally, the chapter covers the implications of ‘big data’ and machine learning for healthcare, and the increasing use of mobile technology in order to generate, store and transmit health data.
