The case of Charlie Gard sparked an ongoing public and academic debate whether in court decisions about medical treatment for children in England & Wales the best interests test should be replaced by a harm threshold. However, the literature has scantly considered (1) what the impact of such a replacement would be on future litigation and (2) how a harm threshold should be introduced: for triage or as standard for decision-making. This article directly addresses these gaps, by first (...) analysing reported cases in England & Wales about medical treatment in the context of a S31 order, thus using a harm threshold for triage and second comparing court decisions about medical treatment for children in England & Wales based on the best interest test with Dutch and German case law using a harm threshold. The investigation found that whilst no substantial increase of parental discretion can be expected an introduction of a harm threshold for triage would change litigation. In particular, cases in which harm is limited, currently only heard when there are concerns about parental decision-making, may be denied a court hearing as might cases in which the child has lost their capacity to suffer. Applying a harm threshold for triage in decisions about withholding or withdrawing life-sustaining treatment might lead to a continuation of medical treatment that could be considered futile. (shrink)

Given the costs of litigation high-profile court cases about withdrawing life-sustaining medical treatment for seriously ill children in England & Wales tend to be followed by discussion about how to avoid similar cases in future. Whilst two proposals, mediation and replacing the best interests standard with a harm threshold, have received broad attention, a proposal to replace the court by a specialist review committee has not been further investigated. This article analyses the effects of a putative replacement of (...) the courts by a specialist review committee using the process enacted by the futility clauses in the Texas Advance Directives Act (TADA) as a model. Under TADA life-sustaining treatment may legally be withdrawn when a review committee deems it futile and no alternative healthcare provider can be identified. The investigation finds that installing a national review committee with the power to decide whether life-sustaining treatment is futile would have reduced the number of court cases about withdrawal thereof in England & Wales to a handful over the last 3 decades. In addition to shorter procedures and costs savings, a national review committee modelled after TADA would have advantages for both clinicians and parents. Advantages for clinicians are more limited exposure to delivery of clinical care that may cause moral distress and less exposure to adverse press and social media content. Advantages for parents are that the process would establish them as ethical decision makers and offer the possibility of a transfer of the care of the child provided an alternative healthcare provider can be found. As such decisions taken by a specialist review committee may be more acceptable for parents than those of the courts. (shrink)

Assisted dying is a divisive and controversial topic and it is therefore desirable that a broad range of interests inform any proposed policy changes. The purpose of this study is to collect and synthesize the views of an important stakeholder group—namely people with disabilities —as expressed by disability rights organisations in Great Britain. Parliamentary consultations were reviewed, together with an examination of the contemporary positions of a wide range of DROs. Our analysis revealed that the vast majority do not have (...) a clear public stance; those that do exhibit a significant diversity of opinion. DROs opposing legislation on assisted dying have argued that it would be premature, misguided, inequitable and culturally undesirable. Some specify conditions that would have to be satisfied before they could support legalisation, such as radical improvements in health and social care services and the elimination of discrimination against PwD. DROs supporting assisted dying maintain that a change in the law would promote autonomy, end intense suffering, can be delivered safely and is supported by the DRO’s membership. The discussion considers the reasons why several DROs adopt a neutral stance and the argument is made that, whatever their overarching stance on the issue, DROs need to be involved in the policy debate so that the crucial perspectives of PwD are heard and addressed. This is an important message for countries around the world that permit, or are considering legalising, assisted dying. (shrink)

When seen in the historical context of psychiatry's relatively recent discovery of violence and risk, along with society's adoption of more risk-averse attitudes, the Mental Health Act 2007 in England and Wales is an ethical and proportionate measure.

The Mental Capacity Act 2005 came into force in England and Wales in 2007. Its primary purpose is to provide “a statutory framework to empower and protect people who may lack capacity to make some decisions for themselves.” Examples of such people are those with dementia, learning disabilities, mental health problems, and so on. The Act also gives those who currently have capacity a legal framework within which they can make arrangements for a time when they may come (...) to lack it. Toward this end, it allows for them to make advance decisions or to appoint proxy decision makers with lasting powers of attorney. (shrink)

Drawing on 38 in-depth, qualitative interviews, this article explores how people working in the equality sector in England and Wales view and use the current law around sex and gender, and how they imagine law’s future, particularly potential decertification, where the state would withdraw from certifying and regulating a person’s sex/gender. Whilst situated in the bureaucratic strand of the literature, the paper also contributes to wider legal consciousness studies. This literature has generally focused on people’s relationships to law (...) in terms of domination, alienation and game-playing. Drawing on idioms and the language of touch, the paper unpacks the way in which equality actors talked about law not as remote or alienating, but as close and familiar; not as oppressive, but as “precious” and hard-won. Some also regarded law as a place of safety in unsafe times. These proposed ‘attached to law’ and ‘protective of law’ strands of consciousness enrich and extend Ewick and Silbey’s classic ‘before the law’ narrative. The findings are also useful for critical legal and feminist scholarship. Combined with the equality sector’s pragmatic and tactical use of law to problem-solve, this close and protective orientation towards law reproduces its hegemony. The paper concludes by exploring a recurrent refrain that, in relation to decertification, “we’re not there yet” and that gender equality would need to be achieved before decertification would “fly”. (shrink)

England and Wales are moving toward a model of ‘opt out’ for use of personal confidential data in health research. Existing research does not make clear how acceptable this move is to the public. While people are typically supportive of health research, when asked to describe the ideal level of control there is a marked lack of consensus over the preferred model of consent. This study sought to investigate a relatively unexplored difference between the consent model that people (...) prefer and that which they are willing to accept. It also sought to explore any reasons for such acceptance. (shrink)

In this paper, I explore how viability, meaning the ability of the fetus to survive post-delivery, features in the law regulating abortion provision in England and Wales and the USA. I demonstrate that viability is formalized differently in the criminal law in England and Wales and the USA, such that it is quantified and defined differently. I consider how the law might be applied to the examples of artificial womb technology and anencephalic fetuses. I conclude that (...) there is incoherence in the meaning of viability and argue that it is thus a conceptually illegitimate basis on which to ground abortion regulation. This is both because of the fluidity of the concept and because how it has been thus far understood in the law is unsupported by medical realities. Furthermore, it has the effect of heavily diluting pregnant people’s rights with overly moralistic limitations on access to healthcare. (shrink)

BackgroundDuring the arrival of the COVID-19 pandemic, various professional ethical guidance was issued to (and for) health and social care professionals in England and Wales. Guidance can help to inform and support such professionals and their patients, clients and service users, but a plethora of guidance risked information overload, confusion, and inconsistency. MethodsDuring the early months of the pandemic, we undertook a rapid review, asking: what are the principles adopted by professional ethical guidance in England and (...) class='Hi'>Wales for dealing with COVID-19? We undertook thematic content analysis of the 29 documents that met our inclusion criteria.ResultsThe 29 documents captured 13 overlapping principles: respect, fairness, minimising harm, reciprocity, proportionality, flexibility, working together, inclusiveness, communication, transparency, reasonableness, responsibility, and accountability.ConclusionsWe intend this attempt to collate and outline the prominent principles to be helpful, particularly, for healthcare practice during the COVID-19 pandemic and, hopefully, for future pandemic planning. We also offer some reflections on the guidance and the principles therein. After describing the principles, we reflect on some of the similarities and differences in the guidance, and the challenges associated not only with the specific guidance reviewed, but also with the nature and import of “professional ethical guidance”. (shrink)

Major reforms via the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 and subsequent reforms have reduced the legal aid budget and the scope of eligibility in criminal as well as civil cases. According to Mansfield et al., the principles of justice that embody the legal aid provision has been neglected by governments for over a decade and as such; created a gap that emasculates the most vulnerable in society, such as recipients of legal aid. This study employs (...) an interview-based approach to investigate alternative perspectives in terms of the cuts and widespread impact on service providers in England and Wales, such as barristers, and solicitors. Detailed qualitative data were collected to provide insights into the diminishing legal aid scheme through the lived experiences of both civil and criminal legal aid providers. The study examines the concerns of service providers regarding their future as public defenders and the future of the judicial system post-LASPO 2012, focusing on safeguarding the rights of individuals facing litigation and ensuring that newly qualified lawyers are not deterred from public defence roles due to the long-term effects of ongoing legal aid cuts. (shrink)

Major reforms via the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 and subsequent reforms have reduced the legal aid budget and the scope of eligibility in criminal as well as civil cases. According to Mansfield et al., the principles of justice that embody the legal aid provision has been neglected by governments for over a decade and as such; created a gap that emasculates the most vulnerable in society, such as recipients of legal aid. This study employs (...) an interview-based approach to investigate alternative perspectives in terms of the cuts and widespread impact on service providers in England and Wales, such as barristers, and solicitors. Detailed qualitative data were collected to provide insights into the diminishing legal aid scheme through the lived experiences of both civil and criminal legal aid providers. The study examines the concerns of service providers regarding their future as public defenders and the future of the judicial system post-LASPO 2012, focusing on safeguarding the rights of individuals facing litigation and ensuring that newly qualified lawyers are not deterred from public defence roles due to the long-term effects of ongoing legal aid cuts. (shrink)

In England and Wales, there is significant controversy on the law related to abortion. Recent discussions have focussed predominantly on the health professional's right to conscientious objection. This article argues for a comprehensive overhaul of the law from the perspective of an author who adopts the view that all unborn human beings should be granted the prima facie right to life. It is argued that, should the law be modified in accordance with this stance, it need not imply (...) that health professionals should enjoy an unqualified right to object to participating in the provision of abortion. Indeed, it is proposed that – in some situations – women should be granted a positive right to abortion. While the focus of this article is on changing the law in England and Wales, it is hoped that the position developed here will also inspire legal debate and reform elsewhere. (shrink)

Globally, performative spaces and venues of artistic creativity are governed by sets of conventions which impact the creative process. In this article, we discuss the experiences of four different creatives, operating in four different creative spaces. A poet and football player, a theatre producer and script writer, a gallery curator, and a ballet dancer have all shared their experiences of how traditionally white and heteronormative discourses regulate their respective creative spaces, the ways they conform to or transgress these norms, and (...) the ways their interactions with their chosen creative spaces affect their creativity. These creatives have identities which are somehow ‘marked’, somehow ‘different’ from the ‘norms’ Wales and South-West England. Whether members of the LGBTQ+ community, migrants to Wales from European and Caribbean countries, or being a different race to many around them, the creatives all have complicated interactions with the norms of their creative spaces within Wales and South-West England. These creative’s identities often clash with an entrenched lack of diversity and the broader expectations of British society. Despite, or perhaps, because of, these conflicts and tensions, each of the creatives discussed here found immense joy in the relationship between their identity/ies and their creative spaces and discovered how their own identity/ies are a central driving force for their creativity. Regardless of the differences of their mediums, each creative interviewed sought to centre their identity, to help them create art which can challenge dominant white and heteronormative discourses in wider British society. (shrink)

ObjectiveTo examine health and social care professionals’ understanding of the legislation governing research involving adults lacking mental capacity in England and Wales.MethodsA cross-sectional online survey was conducted using a series of vignettes. Participants were asked to select the legally authorised decision-maker in each scenario and provide supporting reasons. Responses were compared with existing legal frameworks and analysed according to their level of concordance.ResultsOne hundred and twenty-seven professionals participated. Levels of discordance between responses and the legal frameworks were high (...) across all five scenarios. Nearly half of the participants provided responses that were discordant in all scenarios. Only two participants provided concordant responses across all five scenarios.DiscussionParticipants demonstrated a lack of knowledge about the legal frameworks, the locus of authority and the legal basis for decision-making. The findings raise concern about the accessibility of research for those who lack capacity, the ability to conduct research involving such groups and the impact on the evidence base for their care.ConclusionThis is the first study to examine health and social care professionals’ knowledge and understanding of the dual legal frameworks in the UK. Health and social care professionals’ understanding and attitudes towards research involving adults with incapacity may warrant further in-depth exploration. The findings from this survey suggest that greater training and education is required. (shrink)

The Law Society recently published a practice note titled 'Prosecutions of victims of trafficking'. This practice note comes many years after many lawyers had highlighted the problem and after the government machinery had chuntered into action and passed the UK Modern Slavery Act 2015 with explanatory notes and non-statutory guidelines for corporations. Since 2012 there had been issued warnings about the way defence lawyers, the Crown Prosecution Service and the UK police were dealing with trafficking and the Criminal Cases Review (...) Commission as far back as 2012 had note the severe failings by defence solicitors, prosecution and police, leading to many appeals and potential miscarriages of justice. Even in 2012 there were 946 known human trafficking victims, including 234 children. There was an attempt at a Human Trafficking Bill in 2010 which came to a halt and several reports including one by the Prison Reform Trust and Cambridge University Press, notwithstanding many books by notable academics for many years before today. This article examines the inadequacies of the Law Society practice note on defending victims and the jumble of high-ideals but short-sighted and impractical parts of the UK Modern Slavery Act 2015. (shrink)

In this article I explore the ways in which legal language, discourses, and narratives construct new dominant identities for women who kill their children. These identities are those of the ‘bad’, ‘mad’, or ‘sad’ woman. Drawing upon and critiquing statutes, case law, and sentencing remarks from England and Wales, I explore how singular narrative identities emerge for the female defendants concerned. Using examples from selected cases, I highlight how the judiciary interpret legislation, use evidence, and draw upon gender (...) stereotypes in carefully constructing macro-narratives which produce gendered identities for filicidal women, thus nullifying the challenge these women pose to appropriate femininity and the motherhood mandate. Each of the narrative identities discussed deny the agency of the female defendants that they are attached to, albeit in subtly different ways, by denying their ability to make any degree of choice in relation to their filicidal actions. Although such identity construction and agency denial may not always be damaging to these filicidal women per se, its pervasiveness within legal discourse reinforces and reproduces damaging gender stereotypes surrounding women and femininity. (shrink)

The approach to managing the involuntary detention of people suffering from psychiatric conditions can be divided into those with clinicians at the forefront of decision-making and those who rely heavily on the judiciary. The system in England and Wales takes a clinical approach where doctors have widespread powers to detain and treat patients involuntarily. A protection in this system is the right of the individual to challenge a decision to deprive them of their liberty or treat them against (...) their will. This protection is provided by the First-tier Tribunal; however, the number of successful appeals is low. In this paper, the system of appeal in England and Wales is outlined. This is followed by a discussion of why so few patients successfully appeal their detention with the conclusion that the current system is flawed. A number of recommendations about how the system might be reformed are offered. (shrink)

This essay proposes an approach to understanding changes in political responses to crime in England and Wales over the last third of the twentieth century and developments in criminological knowledge over the same period. To explore the association between these in some empirical detail, we argue, would provide a historical?sociological understanding that is currently lacking, notwithstanding Garland's significant intervention in The Culture of Control. We take issue with some aspects of Garland's account, on both methodological and substantive grounds, (...) and delineate certain distinctions between his ?history of the present? and the historically situated hermeneutics that we favour. The latter, we suggest, can be more attentive to particular political and intellectual struggles that have had a formative bearing on the current field and, as such, offer new perspectives on the position of crime and punishment in contemporary political culture. (shrink)

Standard Assessment Tasks are used in the assessment of pupil performance relative to the National Curriculum in England and Wales, assigning pupils to one of 10 levels on various Attainment Targets . This is a criterion‐referenced system, and the conventional reliability measures used in norm‐referenced systems do not apply. This paper discusses the problems involved in aggregating SA T items to give levels, and in measuring the reliability of the outcomes produced. Fitting a simple model to SAT data (...) has allowed reliability measures to be produced which are more relevant to this situation than the single numerical values applied to norm‐referenced tests. (shrink)

Traditionally floods have been understood to be acts of God or nature, with localised impacts afflicting those who choose to live or to invest capital in lowland and coastal locations. This central idea of causation, located outside human agency, survives somewhat precariously today, but is reflected in the lack of any right to protection from flooding in England and Wales. However in 1930 new legislation institutionalised a social framing of the impact of floods as part of a wider (...) national problem. This related the interests of lowland agriculture and land drainage to the national economic and military interest. Modernising and expanding agricultural production was a political priority from the 1930s to the 1980s. The cost of preventing flooding and draining land was transferred from the affected landowners to the nation as a whole. River and coastal engineering was central to the new policy, and by the early 1970s much of the riverine and coastal environment was radically altered by flood defence structures and associated land drainage. As a result of food over-production and conflicts with conservation interests in the early 1980s, the emphasis has shifted from drainage to flood defence, while risk reduction and environmentalist values have also been promoted. The institutional arrangements from 1930 largely survive, however, and a new coherent social framing has failed to emerge. It is argued that for a risk-oriented framing to succeed, new assumptions about causation and a new ethical outlook are now needed. Emphasis on flood 'control' rather than 'defence', and a shift in priorities from economic benefits towards human rights and intrinsic value in nature are proposed as key elements in such a reframing. (shrink)

Dr Noel Semple, Professor Russell Pearce and Professor Renee Knake combine to compare legal profession regulation in the US with that of the countries closest to it institutionally and culturally: Canada, Australia, New Zealand, the United Kingdom and Ireland. This enables them to develop an illuminating taxonomy of legal professional regulation, and to describe the assumptions and objectives underlying the different approaches to regulation. The US and Canada provide a 'professionalist-independent framework' that centres on 'a unified, hegemonic occupation of lawyer' (...) which promotes self-regulation, and the exclusion of non-lawyers from partnership and investment in law practices. By contrast, in other countries that they examine, 'consumerist-competitive approaches' predominate, opening up the profession to co-regulation with executive government and allowing for different forms of legal occupations and non-lawyer influence and investment in law practices. Of course, as they show, in some countries there are combinations and hybrids of these two approaches. Unlike Rhode, who endorses England and Wales' consumerist-competitive approach to regulation in the Legal Services Act 2007, Semple, Pearce and Knake consciously avoid stating a preference for one approach over the other. (shrink)

Self regulation and high ethical standards are considered the distinguishing and defining characteristics of the legal profession. Yet they are under attack from the state and the public. Why? Some argue that the legal profession's codes of conduct are a hotchpotch of rules without any clear ethical basis. For the first time in English and Welsh history,Boon and Levin systematically address these questions. The most important are as follows: Is self-regulation crucial to the survival of the legal profession? What fundamental (...) philosophical principles govern ideas of professional conduct? Are the present codes regulating solicitors and barristers consistent with these principles? And, looking forward, are they appropriate when the legal profession faces radical social, political and economic change? These issues are of interest to everyone concerned with the dynamics of the justice system in England and Wales. Without an independent legal profession, is justice possible? Students, teachers and practitioners will find this the first comprehensive and interdisciplinary guide to and analysis of professional conduct and ethics. (shrink)

(1997). Significant redefinitions: A meta‐analysis of aspects of recent developments in initial teacher education in England and Wales. Educational Philosophy and Theory: Vol. 29, No. 2, pp. 102-118. doi: 10.1111/j.1469-5812.1997.tb00023.x.

American legal scholar MacKinnon held that using consent as the legal criterion to draw the line between rape and intercourse would evade the issue of male dominance in heterosexual relations. Feminist lawyers in the Netherlands and England and Wales translated the insight that rape has to do with inequality between the sexes in alternative definitions of rape. They also struggled to get these alternative definitions incorporated in law. However, in the Netherlands as well as in England and (...) Wales, feminist proposals to broaden the concept of coercion or non-consent to include submission met with serious obstacles from within the legal system. This article describes the process the feminist proposals to redefine coercion or non-consent in rape law went through in the Netherlands and in England and Wales. It tries to answer the following question: To what extent can the obstacles in this process of forming a broad definition of coercion be attributed to what MacKinnon called the inherent fallocentrism of law? (shrink)