This chapter begins with a discussion of concepts of death. It considers the mostly philosophical arguments against the use of the term ‘brain death’ as applied to the person and then explains the medico-legal effects of applying brainstem death criteria. The chapter also discusses post-mortem pregnancy.
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Chapter
17. The Diagnosis of Death
G. T. Laurie, S. H. E. Harmon, and E. S. Dove
Chapter
18. The Donation of Organs and Transplantation
G. T. Laurie, S. H. E. Harmon, and E. S. Dove
This chapter discusses ethical and legal aspects of organ transplantation. After reviewing the technical criteria—or biological hurdles—associated with transplantation, and the two primary types of transplantation (i.e., homotransplantation and xenotransplantation), it explores the regulatory framework and types of donors in the living donor context, and the same for the cadaveric donor. It also looks briefly at neonates and foetal donors, donations for the aged, and reconstructive transplants.
Chapter
14. Mental Health and Human Rights
G. T. Laurie, S. H. E. Harmon, and E. S. Dove
This chapter discusses ethical and legal aspects of mental health and its management. It covers the evolution of mental health law, paternalism and capacity, and the treatment framework, which includes standards for informal treatment and compulsory treatment, and safeguards of liberty. It also addresses a range of issues from the human rights perspective, and mental disorders and criminality, as well as civil liability.
Chapter
3. Medical Negligence
This chapter examines the legal and ethical aspects of medical negligence. It begins with an overview of the law and medical malpractice. It then discusses the law of negligence; the law of contract; medical malpractice litigation in practice; legal costs; the perception that medical negligence litigation is unsatisfactory; the NHS Redress Act 2006; the ‘no fault’ scheme; and the law governing medicines. The law in this area seeks to strike a balance between ensuring patients receive compensation if they have been harmed as a result of bad treatment, and allowing doctors professional freedom to determine which treatment is most appropriate for a particular condition.
Chapter
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.
Chapter
6. Mental Health Law
This chapter first considers statistics on mental health in the UK. It then discusses the Mental Health Act (MHA) 1983; the MHA 1983 Code of Practice; reforms to the law under the 2007 Act; problems in mental health practice; critics of mental health; and paternalism as the ground for detention. It highlights the difficulty in striking the correct balance between protecting the public from the perceived threat of mentally disordered people and protecting the rights of those who suffer mental illness. The chapter also illustrates how the principle of autonomy, which plays such an important role in medical law and ethics, is given much less prominence in the area of mental health law.
Chapter
1. Medical Ethics and Medical Practice
G. T. Laurie, S. H. E. Harmon, and E. S. Dove
This chapter discusses the following: the ethical basis for the practice of medicine; the organisation of modern medicine; the importance of the relationship between the medical profession and the public; legal intervention in medicine; and the doctor’s position.
Chapter
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
19. Medical Assistance in Dying
G. T. Laurie, S. H. E. Harmon, and E. S. Dove
This chapter discusses ethical and legal aspects of euthanasia and assisted dying. It first examines the non-voluntary termination of life, covering the relationship between medical treatment and assistance in dying as a matter of failure to treat, and the philosophical concept of ‘double effect’. The chapter then discusses activity and passivity in assisted dying; dying as an expression of patient autonomy; suicide and assisted suicide; physician-assisted suicide; and assisted dying in practice.
Chapter
8. The Management of Infertility and Childlessness
G. T. Laurie, S. H. E. Harmon, and E. S. Dove
This chapter discusses ethical and legal aspects of managing infertility and childlessness. It addresses the control of assisted reproduction in the UK; insemination; the infertile or childless woman; and surrogate motherhood.
Chapter
4. Consent to Treatment
G. T. Laurie, S. H. E. Harmon, and E. S. Dove
This chapter discusses ethical and legal aspects of patient consent. It covers the limits to consent (including the context of the unconscious patient and adults lacking capacity); the refusal of treatment by capacitous adults and others; the consequences of proceeding without consent; and the negligence action and the vagaries of information disclosure.
Chapter
2. Public Health and the State–Patient Relationship
G. T. Laurie, S. H. E. Harmon, and E. S. Dove
This chapter orients medical law in the broader context of public and community health, emphasising the human rights components of health promotion, health protection and the management of threats to the community through a variety of legal frames, as well as the role of physicians for good and ill.
Chapter
4. Consent to Treatment
This chapter examines the legal and ethical aspects of treating a patient without consent. It considers the meaning of ‘consent’ and the position of patients who lack the capacity to consent. For children who lack capacity, consent involves a delicate balance between the rights of the children and those of their parents. For adults lacking capacity, the Mental Capacity Act 2005 has emphasized the ‘best interests’ test, but has largely left open the question of how a person’s best interests are to be ascertained. The chapter also considers what weight should be attached to advance decisions (sometimes called living wills).
Chapter
1. An Introduction to Bioethics
This chapter provides an introduction to bioethical reasoning. Borrowing from different traditions in moral philosophy, bioethics offers a variety of ways to resolve and think through medical and ethical dilemmas.
Chapter
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.
Chapter
9. The Control of Fertility and Child Birth
G. T. Laurie, S. H. E. Harmon, and E. S. Dove
This chapter discusses ethical and legal aspects of controlling fertility and birth. It addresses the highly contested concept of personhood, as well as contraception, contragestation, sterilisation, and termination of pregnancy, and the increasing use of conscientious objection by care givers.
Chapter
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
6. Medical Confidentiality
G. T. Laurie, S. H. E. Harmon, and E. S. Dove
This chapter discusses ethical and legal aspects of medical confidentiality. It covers the relationship between confidentiality and data protection law; the possible exceptions to the confidentiality rule; confidentiality and the legal process; confidentiality for the purposes of medical research; patient access to medical records; remedies for breach of confidentiality; and confidentiality and death.
Chapter
5. Liability for Medical Injury
G. T. Laurie, S. H. E. Harmon, and E. S. Dove
This chapter discusses ethical and legal aspects of medical liability. It covers compensation for injury; the basis of medical liability; what constitutes negligence; the problem of the novice; protecting patients from products; protecting patients from themselves; the doctrine of res ipsa loquitur; operational failures; causation; injuries caused by medical products or devices; and criminal negligence.
Chapter
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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