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Cover Mason and McCall Smith's Law and Medical Ethics

10. Mental Health Law  

A. M. Farrell and E. S. Dove

This chapter explores the law in relation to mental health, and the concepts and principles engaged in its justification and critique. It compares the statutory frameworks across the UK jurisdictions, focusing first on the involuntary treatment of mental health problems, the legal criteria for when these powers may be used, and limitations or safeguards placed on those powers. It then discusses the legal rules which allow decisions to be taken on behalf of adults found to lack capacity to make decisions for themselves, discussing recent trends in case law relating to capacity and best interests. This chapter also considers relevant human rights instruments and their impact on the legal framework, focusing on Article 5 ECHR (the right to liberty), its interpretation in UK law, the impact of the UK Supreme Court Cheshire West (2014) case, and the relationship between mental health law and the UN Convention on the Rights of Persons with Disabilities. The chapter concludes by discussing current programmes of reform in the area.

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11. Medical Confidentiality and Data Protection  

A. M. Farrell and E. S. Dove

This chapter covers two legal regimes in the biomedical context that are of increasing importance and complexity: the common law duty of confidentiality and data protection law. Both regimes have experienced significant development in the past generation. As part of this exploration, brief consideration will also be given to a third related and emerging legal regime, namely the tort of ‘misuse of private information’. The central focus of the chapter is the interplay between UK data protection law, the duty of confidentiality, and wider frameworks in Europe and at the international level. A range of sources are considered, including case law, primary, and secondary legislation such as the Health Service (Control of Patient Information) Regulations 2002, UK General Data Protection Regulation, and Data Protection Act 2018; guidance from entities such as the General Medical Council; and academic literature. The chapter illustrates that following both Brexit and the Covid-19 pandemic, medical confidentiality and data protection law are undergoing a state of reform that may have significant implications for patient privacy and trust in the healthcare system.

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9. Genetic Information  

This chapter examines the regulation of access to genetic information. It first discusses third parties’ interests in genetic test results, and the extent to which genetic privacy is protected by the law. It considers whether genetic discrimination should be treated in the same way as other types of discrimination and discusses developments in the field of genetics, including direct-to-consumer genetic testing and pharmacogenetics.

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7. Public Health  

A. M. Farrell and E. S. Dove

This chapter covers the efforts undertaken by the UK’s four nations to address aspects of public health, including both communicable (or infectious) and non-communicable disease, through law and policy. We consider the Covid-19 pandemic and its demonstration of the limitations and strengths of the existing organisations, infrastructure, laws, and regulations to address matters of public health. This in turn has generated a good amount of public disquiet about the role of the state in interfering with individual liberties and the appropriate balance to be struck between protection of the population’s health—what is considered the state’s most important responsibility—and individual choice and liberty—something often seen as a matter of primary value in our society and a component of our fundamental rights. As we come to see, more than most other areas of medicine and law, public health is fundamentally a political endeavour.

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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.

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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.

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4. Informed Consent  

This chapter examines ‘informed consent’, and the question of how much information must be provided to patients before they consent to medical treatment. It first considers the ethical justifications for informing patients and then examines the legal framework that protects patients’ interests in information disclosure. The chapter also explores some alternatives to the law of tort, and the guidance produced by the medical profession.

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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.

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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.

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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.