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Chapter

Cover Family Law

1. Family Life and the Law  

Ruth Lamont

This chapter explores the nature of family life and the role of the law in family relationships to identify the particular challenges facing family lawyers. In particular, it considers how the law interacts with family life, how family relationships are identified in law, and what role the law plays in regulating family behaviour. The diversity and personalised experience of ‘family’ means that the role of the law in these processes is complex. There are two central issues facing family lawyers. First, the identification of a relationship as being one of ‘family’ for the purposes of the law is an important label, and may give rise to specific rights and obligations, even if the particular relationship bears no significance for the individual. Secondly, identifying the nature of the rights and obligations arising from a family relationship is central to determining the significance of the relationship.

Chapter

Cover Mason and McCall Smith's Law and Medical Ethics

8. Consent to Medical Treatment  

A. M. Farrell and E. S. Dove

This chapter explores the nature of consent to medical treatment for adults (primarily those with capacity), as well as its flipside, refusal of medical treatment. We begin by focusing on the function of consent and the consequences for failing to obtain it. We then consider what constitutes informed consent for the purposes of medical treatment, and the nature of information which must be disclosed to a patient to secure this. Finally, we discuss circumstances where medical treatment may proceed even in the absence of consent. As part of this, the chapter traces the history of ‘informed consent’ from the American case of Salgo (1957) through and beyond the foundational UK Supreme Court case of Montgomery v Lanarkshire Health Board (2015), which sets out legal rules on the disclosure of risks to satisfy the criteria of an informed consent for medical treatment. We discuss how patient autonomy and exercise of choice is now a common theme in relevant case law, and professional guidance increasingly emphasises shared decision making for treatment decisions. Nevertheless, the law still places hurdles in the path of individuals seeking to exercise their autonomy, and vestiges of Bolam (1957) remain, particularly in relation to medical advice concerning the risks associated with treatment.

Chapter

Cover Mason and McCall Smith's Law and Medical Ethics

18. Euthanasia and Assisted Suicide  

A. M. Farrell and E. S. Dove

As with treatment withdrawal and withholding, both law and ethics are engaged in the debates on euthanasia and assisted suicide. While the law is immovable on the proscription of the former as murder, assisted suicide is becoming increasingly permissible in various jurisdictions, subject to a range of conditions, or ‘safeguards’. These range from residency in the jurisdiction for a period of time, to capacity and a terminal diagnosis. In this chapter, we begin by discussing the question of euthanasia, before turning to assisted suicide as an expression of a person’s autonomy. We consider the ways in which the UK jurisdictions could reverse the current position in which assisting a suicide amounts to a criminal offence, including both a jurisprudential and a legislative route to reform. We conclude that while this is an essentially constitutional issue, there is no need for legislative reform, save in respect of that narrow class of patient with a degenerative and incapacitating neuromuscular disease.

Chapter

Cover Mason and McCall Smith's Law and Medical Ethics

13. Treatment of the Aged  

G. T. Laurie, S. H. E. Harmon, and E. S. Dove

This chapter discusses some of the ethical and legal issues associated with the very difficult practice of treating the elderly, grounding the discussion in the tension between autonomy and paternalism. It is emphasised that this complex and fragmented field is still undergoing significant regulatory changes as a result of the Care Act 2014, the Social Services and Well-being (Wales) Act 2014, and the Public Bodies (Joint Working) (Scotland) Act 2014. It also covers the elder incapax and dying from old age.

Chapter

Cover Essential Cases: Equity & Trusts

Saunders v Vautier (1841) Cr & Ph 240, 41 ER 482, Court of Chancery  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Saunders v Vautier (1841) Cr & Ph 240, 41 ER 482, Court of Chancery. The document also includes supporting commentary from author Derek Whayman.

Chapter

Cover Essential Cases: Equity & Trusts

Saunders v Vautier (1841) Cr & Ph 240, 41 ER 482, Court of Chancery  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Saunders v Vautier (1841) Cr & Ph 240, 41 ER 482, Court of Chancery. The document also includes supporting commentary from author Derek Whayman.

Chapter

Cover Ashworth's Principles of Criminal Law

3. Criminal Law Values  

The focus in this chapter is on the values the criminal law seeks to protect through criminalization. First, key ‘intrinsic values’ are considered, such as bodily integrity and sexual autonomy. Second, an analysis of ‘public goods’ is provided. Public goods are goods in which we have no individual right or share, but which benefit us in common with others. The criminal law protects public goods as part of its role in supporting our many different lives in common, as consumers, employees, users of roads and of public transport, and so on. The security of the state, openness and integrity in corporate governance and public life, and the common pool resource of a welfare system are all very different examples of public goods in this sense.

Chapter

Cover Steiner and Woods EU Law

8. Remedies in National Courts  

This chapter, which examines the issues concerning the responsibility for procedural rules and remedies between European Union (EU) and national law, discusses the relevant jurisprudence of the Court of Justice (CJ) and explains how it has developed the principles of equivalence and effectiveness, notably in specific fields such as sex discrimination law. It addresses the question of the extent to which EU law, while respecting the principle of national procedural autonomy, may nevertheless require the creation of new remedies in national legal systems for EU law rights—for instance as regards damages, time limits or interim relief.

Chapter

Cover Ashworth's Principles of Criminal Law

4. Criminal Law Fabric  

This chapter analyses the fabric of criminal law—rules, standards, and principles—giving examples of how each of these are used to construct the criminal law. A particular highlight, in the discussion of rules, is the importance of secondary legislation in creating offences, especially offences regulating business activity. The chapter also considers the values that the criminal law should respect, such as human rights, moral autonomy, and lifestyle autonomy. To that end, the chapter explains the harm principle, and the arguments for and against punishing ‘immoral’ behaviour. There is also an analysis of important principles of criminal offence construction and interpretation, such as the principle of strict construction and the authoritarian principle.

Chapter

Cover Medical Law and Ethics

9. Reproduction  

This chapter examines legal and ethical aspects of assisted reproduction. Topics discussed include infertility; the concept of reproductive autonomy; criticisms of assisted reproduction; regulation of assisted reproductive technologies; criticisms of the Human Fertilisation and Embryology Act 1990; gamete donation; surrogacy; cloning; and genetic enhancement and eugenics. The chapter explores the extent to which the state should regulate decisions around reproduction or whether they should be left to the decision of the individuals concerned. Some people believe that the interests of children to be born should be taken into account, although there is extensive debates over how this should be done.

Chapter

Cover Mason and McCall Smith's Law and Medical Ethics

2. Critical Frameworks in Bioethics  

A. M. Farrell and E. S. Dove

This chapter digs deeper into the theories and critical frameworks that are widely used to characterise the concerns, interests, and principles at stake in ethical challenges arising in medicine and health-related contexts and that we can use to justify our responses to these challenges. In doing bioethics we are required to challenge easy assumptions and to interrogate the relevance and persuasiveness of reasons that might be given for ethical positions. The range of responses to questions surveyed in this chapter—such as what matters? Who matters? What defines right and wrong? And what does justice demand of us?—provide a range of frameworks that can be used in this critical endeavour.

Chapter

Cover Smith, Hogan, & Ormerod's Text, Cases, & Materials on Criminal Law

10. Non-fatal offences against the person  

This chapter examines non-fatal offences that range from a trivial tap on the shoulder to levels of harm threatening life itself. While the relevant offences are archaic in their definition and lacking in any coherent structure, they are extremely important because they are frequently prosecuted and they also give rise to interesting questions on issues central to the criminal law, such as how the autonomy of the individual should be respected. The chapter considers whether psychiatric illness can amount to an offence against the person; what level of harm constitutes ‘actual’ bodily harm as opposed to ‘grievous’ bodily harm; and whether actual bodily harm must be ‘inflicted’ or merely caused. Finally, the chapter examines the criminalization of disease transmission. This also chapter examines the controversial question of whether and, if so, when a sane adult should be permitted to consent to harm to himself or to the risk of harm to himself. It considers the threshold of harm—should V be permitted to consent to any level of harm or only to minor harms; whether a person should be permitted to consent to different levels of harm in certain activities: surgery, boxing, horseplay, etc; whether the transmission or risk of transmission of diseases or infections can be consented to; and what constitutes ‘true’ consent.

Chapter

Cover Human Rights Law Directions

10. Article 4: prohibition of slavery and forced labour  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter discusses slavery and forced labour, and the ban on these imposed by the European Convention on Human Rights. ‘Slavery’ and ‘servitude’ are defined as the ownership or total control of one person by another. A slave has no freedom or autonomy and so is denied the minimum dignity that is essential for any human being. ‘Forced labour’, on the other hand, is defined as being forced to work for another under threat of punishment or death. The application of these terms in the context of current practice and, in particular, to ‘modern slavery’ is discussed.

Chapter

Cover Mason and McCall Smith's Law and Medical Ethics

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.

Chapter

Cover Steiner & Woods EU Law

8. Remedies in national courts  

This chapter, which examines the issues concerning the responsibility for procedural rules and remedies between European Union (EU) and national law, discusses the relevant jurisprudence of the Court of Justice (CJ) and explains how it has developed the principles of equivalence and effectiveness, notably in specific fields such as sex discrimination law. It addresses the question of the extent to which EU law, while respecting the principle of national procedural autonomy, may nevertheless require the creation of new remedies in national legal systems for EU law rights—for instance as regards damages, time limits or interim relief.

Chapter

Cover Bromley's Family Law

10. The Legal Position of Children  

N V Lowe, G Douglas, E Hitchings, and R Taylor

This chapter charts the changing legal position of children. It starts by considering the former importance of the status of legitimacy and its near complete abolition. It then discusses the changing nature of the parent–child relationship and the development of the law from paternal authority to shared parental responsibility. Finally the chapter considers the developing notion of children’s autonomy and independent rights which has both limited the scope of legitimate parental authority and emphasised that the interests of children are a matter of public, as well as private, concern. This latter point is well illustrated by the growing importance of the role of the Children’s Commissioner.

Chapter

Cover Mason and McCall Smith's Law and Medical Ethics

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.

Chapter

Cover Human Rights Law Directions

11. Article 5: right to liberty and security  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter discusses Article 5 the right to liberty. This is liberty in its classic sense, addressing the physical liberty of a person (as opposed to broader concepts of liberty, such as the sense of personal autonomy and the lack of individual or social subordination). Article 5 deals with restrictions of liberty like arrest and detention by the police, imprisonment after conviction, detention of the mentally ill in hospitals, and the detention of foreigners in the context of immigration and asylum. It defines and restricts the purposes for which a person can be deprived of his or her liberty and, importantly, requires that people have access to judicial supervision so that the lawfulness of any deprivation of liberty can be examined and, if necessary, remedied. The overriding guarantee of Article 5 is the right not to be detained in an arbitrary manner.

Chapter

Cover Equity

5. Restricting Personal Autonomy  

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. Another contribution of Equity to the common law landscape is the invention of several new and uniquely structured obligations, which restrict individual autonomy in special and rather aggressive ways. This chapter considers obligations that constrain the defendant's autonomy even when his impugned behaviour has caused the claimant no harm. It focuses on Equity's proscriptive rules. The best known are Equity's fiduciary obligations, which demand loyalty and self-denial from trustees and others whose roles entitle them to exercise discretion in managing property belonging to another. More generally, Equity regulates the exercise of all powers that are intended to affect the interests of others, regardless of whether the affected interests are proprietary or not. These are Equity's rules on abuse of power. Finally, Equity has particular strategies to regulate the use of information. These are Equity's rules on breach of confidence.

Chapter

Cover Constitutional Law, Administrative Law, and Human Rights

10. Local Government  

This chapter examines the institution of local government. This topic is often neglected in constitutional law studies, on the rather simplistic basis that since the United Kingdom is not in a legal sense a ‘federal country’ it is only the national governmental system that merits close attention. The suggestion made here is that analysis of the role played by local government institutions reveals a great deal about the nature of ‘democracy’ within our modern constitution. The chapter focuses in general terms on the evolution of ideas relating to localism, tradition, and the ‘modernisation’ of local government and on local government’s changing constitutional status during the course of the twentieth century. More specifically, the chapter examines trends in the institutional structure of the local government sector (and especially the abolition of the Greater London Council and metropolitan counties in the mid-1980s), developments relating to the fiscal autonomy of local government throughout that period, the role played by the judiciary in determining the limits of local government autonomy, and changes in one of the most important areas of local authority activity – the provision of council housing.