This classic textbook, now in its 40th year, focuses on medical law and its relationship with medical ethics and practice. It provides thorough coverage of key topics found on medical law courses, and in-depth analysis of recent court decisions and legislation, encouraging students to think critically about this area of study. The textbook covers the whole field of modern ethical medical practice, making the book suitable for use on all undergraduate and postgraduate medical law courses. It presents a diversity of views in ethical debates, provides analysis of significant new cases and key legislative developments, and encourages students to explore and form their own opinions on contested issues in medical law. It adopts a UK-wide approach to the examination of medical law, taking account of the impact of devolution and Brexit, as well as the influence of international policy and legal developments in shaping medical law in the UK. Among other updates to this edition include brand new ethics chapters that introduce students to concepts, theories, and tools that frame interpretation and analysis of medical law, as well as new or revised chapters in the governance of the UK health system, public health, the regulation of health and social care professionals, and mental health.
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Anne-Maree Farrell and Edward S. Dove
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17. Withholding and Withdrawing Medical Treatment from Adults
A. M. Farrell and E. S. Dove
There are circumstances in which both law and ethics are engaged towards the end of an adult’s life. Among them are the conditions in which further medical treatment would be futile. Such treatment includes life-sustaining treatment provided by a ventilator, often necessitated following a traumatic brain injury which has placed them in a ‘prolonged disorder of consciousness’ from which there is no chance of recovery. Here an advance directive may not have been made, and it falls to the court to determine whether it is in the patient’s best interests to withdraw treatment. In this chapter, we consider the medical circumstances which may lead to that judicial consideration, along with the criteria on which courts will reach a decision on the legality of treatment withdrawal. We conclude that where there is disagreement with the insensate patient’s family members, treatment may be withdrawn where it is in that patient’s judicially assessed ‘best interests’, as long as there has been compliance with mental capacity legislation. In such circumstances, however, we also argue that treatment withdrawal is indistinguishable from euthanasia.
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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.
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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.
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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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10. Ethico-Legal Issues Affecting Children
G. T. Laurie, S. H. E. Harmon, and E. S. Dove
This chapter examines a range of ethico-legal issues as the impact on children. The focus is one consent of mature minors, and the limits therefore, and also on the range of rights and responsibilities relating to children concerning protection of the ir personal data. The chapter then discusses ethical and legal aspects of non-therapeutic research on children; therapeutic research on children; foetal research and experimentation; and embryos and embryonic stem cell research.
Book
Jo Samanta and Ash Samanta
Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. Medical Law Concentrate provides a study and revision guide aiming to cover the essential aspects of this rapidly changing field of law. Topics covered include: the contemporary healthcare environment; medical negligence; consent; confidentiality; and access to medical records. The volume also looks at abortion and prenatal harm, assisted reproduction, clinical research, and organ transplantation. Finally, it covers mental health law and the end-of-life decisions. The work is underpinned by reference to statutory provisions and the common law. Where appropriate, pertinent bioethical and moral principles that often underpin the law in this area are discussed, as well as the influence of quasi-law. Reference is made to key points of comparison with other jurisdictions, as well as some socio-legal considerations.
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3. Consent
This chapter deals with consent as a necessary precondition for medical treatment of competent adults. It provides an overview of the common law basis of the Mental Capacity Act 2005, followed by discussion of issues relating to information disclosure, public policy, and the key case of Montgomery and how this applies to more recent cases. It considers the statutory provisions for adults who lack capacity, exceptions to the requirement to treat patients who lack capacity in their best interests, and consent involving children under the Children Act 1989. Gillick competence, a concept applied to determine whether a child may give consent, is also explained. Relevant case law, including Gillick, which gave rise to the concept, are cited where appropriate.
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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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7. Organ transplantation
This chapter deals with statutory provisions governing human tissue and organ transplantation, with particular reference to the Human Tissue Act 2004. It first considers the position at common law with regards to property in the human body, followed by a discussion of appropriate consent given by potential donors prior to their death or by deceased donors. It also considers the change in law to presumed consent under the Organ Donation (Deemed Consent) Act 2019. Organ donation from living persons and ethical issues surrounding organ transplantation are then explored. The chapter concludes by looking at alternative sources of organs, including xenotransplantation and artificial organs. Relevant court cases are cited, where appropriate.