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Chapter

Cover Medical Law and Ethics

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.

Chapter

Cover Street on Torts

25. Capacity and parties  

This chapter examines the issues of capacity and parties in tort law. It explains that capacity refers to the status of legal persons and their ability to sue or be sued in tort and that a claimant’s injury might be caused by more than one person. Examples are given of the capacity to sue and be sued of companies and children. This chapter discusses also the point that any person successfully sued in tort can seek contribution from other joint or concurrent tortfeasors and this can be done in the course of the original action commenced by the claimant, or in separate proceedings between tortfeasors.

Chapter

Cover Koffman, Macdonald & Atkins' Law of Contract

22. Additional chapter: Capacity  

This chapter considers the scope of contractual capacity, noting the tension in the law between the need to protect someone who is incapacitated and the desire to not treat too harshly the person dealing fairly with the incapacitated person. The general rule is that a minor will not be bound by a contract, although the person contracting with them will be. There are exceptions which will bind both parties unless the minor repudiates, and on becoming 18 a minor may ratify a contract made before that date. The law recognizes the general incapacity to contract of minors, the mentally incapacitated, and in certain circumstances where an individual is intoxicated. An adult of sound mind has full contractual capacity, although they may be able to claim that the contract is not enforceable on some other basis, for example undue influence.

Chapter

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.

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 Medical Law

5. Incapacity I: Adults  

This chapter considers the consent requirement and the principle of autonomy. It then discusses how the law treats patients who lack capacity, offering detailed analysis of the Mental Capacity Act 2005 and its application, including cases involving the withdrawal of life-prolonging treatment.

Chapter

Cover Medical Law and Ethics

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

Cover JC Smith's The Law of Contract

21. Capacity  

This chapter discusses the issue of capacity. The general rule is that contracts are valid but unenforceable on minors (persons under 18 years of age). However, they are enforceable against adults, and a minor can ratify a contract upon attaining the age of majority so that the contract is enforceable against both parties. At common law, mental incapacity is not by itself a reason to set aside a contract. But if the other party knows, or ought to know, of the mental incapacity, then the contract can be set aside. The Mental Capacity Act 2005 makes it clear that a person who lacks capacity must still pay a reasonable price for necessary goods and services.

Chapter

Cover Smith, Hogan, and Ormerod's Criminal Law

4. Crimes of negligence  

David Ormerod and Karl Laird

Negligence refers to conduct that does not conform to what would be expected of a reasonable person. Along with intention and recklessness, negligence involves a failure to comply with an objective standard of conduct; that is, all of them are forms of fault. To prove negligence, the prosecution is not required to show that the accused failed to foresee a relevant risk; it only has to establish that his conduct failed to comply with a reasonable standard. A person is negligent if he is not able to comply with an objective standard of behaviour set by the law. This chapter deals with crimes of negligence and negligence as mens rea, negligence as the basis of liability, degrees of negligence, negligence as a form of culpable fault, and negligence and capacity.

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 Company Law Concentrate

3. The constitution of the company  

This chapter discusses the company constitution. A company’s constitution consists primarily of the articles of association and agreements and resolutions affecting the company’s constitution. The constitution forms a statutory contract between the company and its members, and between the members themselves, but only those provisions relating to membership rights will constitute terms of the statutory contract. A company can alter its articles by passing a special resolution, although statute and the common law restrict a company’s ability to alter its articles.

Chapter

Cover Company Law Concentrate

3. The constitution of the company  

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. This chapter discusses the company constitution. A company’s constitution consists primarily of the articles of association and agreements and resolutions affecting the company’s constitution. The constitution forms a statutory contract between the company and its members, and between the members themselves, but only those provisions relating to membership rights will constitute terms of the statutory contract. A company can alter its articles by passing a special resolution, although statute and the common law restrict a company’s ability to alter its articles.

Chapter

Cover Essential Cases: Criminal Law

Bratty v Attorney-General for Northern Ireland [1963] AC 386, House of Lords  

Essential Cases: Criminal Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Bratty v Attorney-General for Northern Ireland [1963] AC 386, House of Lords. The document also included supporting commentary from author Jonathan Herring.

Chapter

Cover Essential Cases: Criminal Law

Bratty v Attorney-General for Northern Ireland [1963] AC 386, House of Lords  

Essential Cases: Criminal Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Bratty v Attorney-General for Northern Ireland [1963] AC 386, House of Lords. The document also included supporting commentary from author Jonathan Herring.

Chapter

Cover Medical Law Concentrate

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.

Book

Cover Ashworth's Principles of Criminal Law
Principles of Criminal Law takes a distinctly different approach to the study of criminal law, while still covering all of the vital topics found on criminal law courses. Uniquely theoretical, it seeks to elucidate the underlying principles and foundations of the criminal law, and aims to engage readers by analysing the law contextually. This tenth edition looks at issues such as the law’s history and criminal law values, alongside criminal conduct, actus reus, causation, and permissions; criminal capacity, mens rea, and fault, excusatory defences; homicide; non-fatal violations; property crimes; financial crimes; complicity; and inchoate offences. A special aim of the book is to bring an understanding of business activity—in particular small business activity—closer to the centre of the stage, in a discussion of the values protected by the criminal law and of the way in which the law shapes its principles, rules, and standards. A large proportion of criminal offences are drafted with the conduct of businesses, as well as individuals, in mind.

Chapter

Cover Ashworth's Principles of Criminal Law

6. Criminal Capacity, Mens Rea, and Fault  

This chapter deals first with another fundamental requirement of a crime: criminal capacity. It is a precondition of criminal liability that the defendant is a person with sufficient capacity to be held responsible. This leads to an examination of infancy and insanity as barriers to criminal responsibility, and then to a consideration of special factors affecting corporate criminal liability. Second, this chapter considers fault requirements as an element of criminal offences. It explores some of the reasons for and against the criminal law requiring proof of fault in any form. It also considers principal varieties of fault requirement in the criminal law, such as intention and recklessness.

Book

Cover Medical Law and Ethics

Jonathan Herring

Medical Law and Ethics covers not only the core legal principles, key cases, and statutes that govern medical law, but also explores the key ethical debates and dilemmas that exist in the field to ensure that the law is firmly embedded within its context. The title highlights these debates, drawing angles from other jurisdictions, religious beliefs, and feminist perspectives which influence legal regulations. Other features such as ‘a shock to the system’, ‘public opinion’, and ‘reality check’ introduce further sociological aspects, contributing to the way in which the subject is approached. This new edition also includes a new chapter on the medical law governing children and discussion of the response to the COVID pandemic. It also discusses important developments in the case law governing the Mental Capacity Act, clinical negligence, abortion, and reproduction.

Chapter

Cover Company Law

6. Corporate capacity and liability  

This chapter focuses on the complex rules regarding who can act on behalf of the company, and how liability can be imposed on the company for the actions of others. A company can enter into a contract by affixing its common seal to the contract, by complying with the rules in ss 44(2)–(8) of the Companies Act 2006 (CA 2006), or by a person acting under the company’s express or implied authority. Section 39 of the CA 2006 provides that a contract cannot be invalidated on the ground that the contract is outside the scope of the company’s capacity. Meanwhile, section 40 of the CA 2006 provides that the power of the directors to bind the company, or authorize others to do so, is free of any limitation under the company’s constitution. The chapter then considers the four methods of liability: personal liability, strict liability, vicarious liability, and liability imposed via attribution.

Chapter

Cover Commercial Law

4. The creation of the agency relationship  

This chapter considers the various methods by which a relationship of agency can be created, namely by agreement, by ratification, by operation of law (including agency by necessity), and agency arising due to estoppel. It should be noted that an agency relationship might be held to exist, even though the parties or one of the parties do not wish for it to exist, or have expressly declared that such a relationship does not exist. Equally, the fact that the parties describe themselves as ‘principal’ and ‘agent’ will not conclusively establish that a relationship of agency exists, and the courts will disregard such labels if the realities of the relationship indicate that it is not one of agency. An agency relationship can therefore be created consensually or non-consensually. The chapter also discusses preliminary issues such as the capacity of agent and principal, and the formalities needed to create a relationship of agency.