BackgroundIn its 2015 decision in Montgomery v. Lanarkshire Health Board, the Supreme Court of the United Kingdom overruled the long-standing, paternalistic prudent doctor standard of care in favour of a new reasonable patient standard which obligates doctors to make their patients aware of all material risks of the recommended treatment and of any reasonable alternative treatment. This landmark judgment has been of interest to the rest of the common law world. A judicial trend of invoking Montgomery to impose more stringent (...) requirements on doctors is discernible in subsequent decisions since then.Main bodyIn this narrative review, without questioning the idea that properly informed patients should play a more active role in procedures affecting their own health in furtherance of their autonomy, safety, and consumer rights, we identify and analyse, with the aid of realistic clinical thought experiments, three practical conundrums that the Montgomery standard may inflict on the daily work of doctors, unfairly exposing them to arbitrary legal risks.ConclusionsThese conundrums pertain to the ascertainment of the risks that must be disclosed to the patient under the test of ‘materiality’; the legal uncertainty as to the scope of the exceptions; and the actual ability of doctors to cope with the pressures of time. These conundrums offer ripe opportunities to rethink the proper role of judicially developed medical law in modern health care practice. (shrink)

Ethical and legal discourse pertaining to the ability to consent to treatment and research in England operates within a dualist framework of “competence” and “capacity”. This is confusing, as while there exists in England two possible senses of legal capacity – “first person” legal capacity and “delegable” legal capacity, currently neither is formulated to bear a necessary relationship with decision-making competence. Notwithstanding this, judges and academic commentators frequently invoke competence to consent in discussions involving the validity of offering or withholding (...) consent as a synonym for legal capacity to consent. I argue that this gives rise to a conflation, jeopardising clarity and consistency in law. This is somewhat less problematic in instances of “first-person” legal capacity that are heavily informed by criteria for decision-making competence than in the second sense of legal capacity, which is qualitatively different from decision-making competence, or with first-person legal capacity when defined in different terms from competence. The paper concludes by proposing that the soundest resolution to this problem is by making decision-making competence a necessary and sufficient condition of first-person legal capacity, affording a more scrupulous distinction between the two different forms of legal capacity that exist. (shrink)

The doctor-patient relationship -- Consent, choice, and refusal : adults with capacity -- Treating adults who lack capacity -- Children and young people -- Confidentiality -- Health records -- Contraception, abortion, and birth -- Assisted reproduction -- Genetics -- Caring for patients at the end of life -- Euthanasia and physician assisted suicide -- Responsibilities after a patient's death -- Prescribing and administering medication -- Research and innovative treatment -- Emergency situations -- Doctors with dual obligations -- Providing treatment and (...) care in detention settings -- Education and training -- Teamwork, referral, delegation, and shared care -- Public health dimensions of medical practice -- Reducing risk, clinical error, and poor performance. (shrink)

Simon Woods proposes that we ought to re-orientate clinical decisions at the end of life back towards the patient, so as to honour his or her account of their “global” interests. Woods condemns the current medico-legal approach for remaining too closely tethered to the views of doctors. In this response, I trace the story of Mrs Kelly Taylor, who sought to be sedated and have life-sustaining treatment withdrawn, and I do so in order to show not only why Woods is (...) right to detect an asymmetry in the law but also why there is more to the legal landscape than first appears. I argue that patient choice is indeed bounded—most obviously by the views of the doctors (and the judges), but no less significantly by so-called “public interest” concerns. Woods’ proposal implicitly, and rightly, forces reconsideration of these public interest dimensions of medico-legal decision-making. This often invisible boundary is not presently granted the attention it deserves (not least by the judges themselves). However, as soon as we delve into the ethical values at stake, then it becomes apparent that there are many more questions to be asked regarding their meaning and interaction before we can determine the appropriate ethical prism through which to view the health care endeavour in English medical law. (shrink)

This is a slim, user friendly volume designed to introduce medical students and practicing clinicians to some basic issues of medical law and ethics, as well as to the ways in which lawyers and philosophers characteristically think. The book is divided into two parts: the first adumbrates the main ethical theories, some central ethical concepts, the role of law in society, and the English legal system ; the second part comprises chapters about key issues such as “consent”, (...) “reproductive medicine”, and “mental health”.This integration of ethics and law into such an accessible and tidy package is the main strength of the book. More weighty tomes have aimed for the same integration , but their scholarly density makes them more appropriate for reference than overview. The integration is important because there will always be certain students and practitioners who do not see …. (shrink)

Access to clear and concise medication information is essential to support safe and effective use of prescription drugs. Patient misunderstanding of medication information is a common reason for non-adherence to medication regimens and a leading cause of outpatient medication errors and adverse drug events in the U.S. Medication errors are the most common source of risk to patient safety, leading to poor health outcomes, hospitalizations, and deaths. Over half a million adverse drug events occur in the outpatient setting each year (...) at a cost of approximately $1 billion annually.Nearly half of adults in the U.S. experience difficulty understanding and acting upon health information. Even individuals with high levels of general literacy may find medication information difficult to understand or use. The risk of misunderstanding medication information is compounded for patients with limited English proficiency who may not have access to this information in their own language. (shrink)

Over the last quarter of a century, English medical law has taken an increasingly firm stand against medical paternalism. This is exemplified by cases such as Bolitho v City and Hackney Health Authority, Chester v Afshar, and Montgomery v Lanarkshire Health Board. In relation to decision-making on behalf of incapacitous adults, the actuating principle of the Mental Capacity Act 2005 is respect for patient autonomy. The only lawful acts in relation to an incapacitous person are acts which (...) are in the best interests of that person. The 2005 Act requires a holistic assessment of best interests. Best interests are wider than ‘medical best interests’. The 2018 judgment of the Supreme Court in An NHS Trust v Y from patients in prolonged disorders of consciousness ) risks reviving medical paternalism. The judgment, in its uncritical endorsement of guidelines from various medical organisations, may lend inappropriate authority to medical judgments of best interests and silence or render impotent non-medical contributions to the debate about best interests—so frustrating the 2005 Act. To minimise these dangers, a system of meditation should be instituted whenever it is proposed to withdraw life-sustaining CANH from patients with PDOC, and there needs to be a guarantee of access to the courts for families, carers and others who wish to challenge medical conclusions about withdrawal. This would entail proper public funding for such challenges. (shrink)

In this paper we question whether the concept of "genetic privacy" is a contradiction in terms. And, if so, whether the implications of such a conclusion, inevitably impact on how society comes to perceive privacy and responsibility generally. Current law and ethical discourse place a high value on self-determination and the rights of individuals. In the medical sphere, the recognition of patient "rights" has resulted in health professionals being given clear duties of candour and frankness. Dilemmas arise, however, when (...) patients decline to know relevant information or, knowing it, refuse to share it with others who may also need to know. This paper considers the notions of interconnectedness and responsibility to others which are brought to the fore in the genetic sphere and which challenge the primacy afforded to personal autonomy. It also explores the extent to which an individual's perceived moral obligations can or should be enforced. (shrink)

In February 2020, the British Medical Association will be surveying members for their views on what the BMA’s position on physician-assisted dying should be. The BMA is currently opposed to physician-assisted dying in all its forms, a position that was agreed in 2006 at the annual representative meeting, the Association’s policy-making conference.1 As previously reported in Ethics briefing,2 the decision to survey members follows a motion passed at last year’s ARM which called on the BMA to “carry out a (...) poll of members to ascertain their views on whether the BMA should adopt a neutral position with respect to a change in the law on assisted dying”. The results from the survey will not determine BMA policy. Rather, the results be published ahead of this year’s ARM and provided to those attending to inform a debate and discussion on the BMA’s policy position. More information about the survey, including a briefing pack of useful information, and information for BMA members on how to participate can be found online at www.bma.org.uk/PAD. ### High Court rejects Judicial reviews on assisted suicide The High Court has refused permission for two separate challenges to the law on assisted suicide in the UK to proceed to a full hearing. In the first case, Phil Newby, who has motor neuron disease, applied for judicial review of the law on assisted suicide and asked for the court to carry out a detailed examination of what he termed “legislative facts” – that is, an examination of the existing evidence on the “costs, risks and benefits” of regulating assisted suicide – including a cross-examination of relevant expert witnesses.1 Handing down the judgement, Lord Justice Irwin and Mrs Justice May, held that assisted dying …. (shrink)

ABSTRACT When is it right to enforce medical treatment on a patient who is refusing that treatment? English law recognises two ethical principles as of paramount importance: the autonomy of the patient; and the consequences of not treating compared with treating. The law, by and large, operates these principles in succession. Thus, in the case of a patient refusing treatment, the law asks first, is the patient competent? Only if the answer is no, are the consequences considered. We (...) criticise the position taken by English law and argue, first, that competence is a graded and not a binary concept, and secondly, that the two ethical principles should be applied not sequentially but at the same time. These two ideas form what we have called the balance model. This model could be used for an empirical study of individuals’ ethical beliefs, and in particular to test the hypothesis that the ethical beliefs of most individuals conform to the balance model rather than to the position taken by English law. (shrink)

The medical profession consistently strives to uphold patient empowerment, equality and safety. It is ironic that now, at a time where advances in technology and knowledge have given us an increased capacity to preserve and prolong life, we find ourselves increasingly asking questions about the value of the lives we are saving. A recent editorial by Professor Raanan Gillon questions the emphasis that English law places on the sanctity of life doctrine. In what was described by Reverend Nick (...) Donnelly as a “manifesto for killing patients”, Professor Gillon argues that the sanctity of life law has gone too far because of its disregard for distributive justice and an incompetent person’s previously declared autonomy. This review begins by outlining the stance of the sanctity of life doctrine on decisions about administering, withholding and withdrawing life-prolonging treatment. Using this as a foundation for a rebuttal, a proposal is made that Professor Gillon’s assertions do not take the following into account. (shrink)

Photo ID 71252867© Stepan Popov| Dreamstime.com Abstract While Medical Assistance in Dying (MAiD) has been legalized in Canada since 2016, it still excludes eligibility for persons who have mental illness as a sole underlying medical condition. This temporary exclusion was set to expire on March 17th, 2024, but was set 3 years further back by the Government of Canada to March 17th, 2027. This paper presents a critical appraisal of the case of MAiD for individuals with mental illness (...) as the sole underlying medical condition through the analysis of three ethical theories: principlism, deontology, and utilitarianism. Through evidence and discussion, it will be demonstrated that MAiD, in this context, may be ethically justifiable on the grounds of upholding human rights, protecting dignity, and minimizing suffering. Introduction In June of 2016, Medical Assistance in Dying (MAiD) was legalized in Canada.[1] Throughout the first six years, a temporary exclusion of eligibility for persons suffering solely from mental illness was extended.[2] The exclusion of mental illness as a sole underlying medical condition was set to expire on March 17, 2024.[3] However, on February 1, 2024, just over a month before the set expiration, the Government of Canada once again extended the exclusion, this time setting it back three years to March 17, 2027. There are currently several countries that allow MAiD for mental illness, including Belgium, the Netherlands, and Luxembourg.[4] Some countries, like Spain,[5] do not give specific guidance, leaving the matter under discussion by ethicists and courts. In these countries, there are specific (although different) requirements for the process; overall, for mental illness, the illness must be verifiable and not simply related to a perception of satisfaction with the length of life. This extension ignited discussion on whether MAiD for persons who have mental illness as a sole underlying medical condition in Canada is ethically acceptable. As a complex, multi-faceted, and interdisciplinary issue, ethicists assessing MAiD must take into account various moral obligations and considerations. This paper analyses MAiD in this context through the application of three ethical theories: principlism, deontology, and utilitarianism. This paper concludes that, based on the current evidence and knowledge of this developing situation, MAiD for persons with mental illness in Canada may be ethically justified on the grounds of upholding human rights, labour obligations, and dignity. Through the exploration of research and discussions, it will be demonstrated that society at large ought to protect liberty and act towards relieving suffering, thereby supporting the potential eligibility of MAiD for persons who have mental illness. Principlism: The Capacity and Ability to Assess and Decide for One’s Own Life Principlism is the application of four principles: autonomy, beneficence, non-maleficence, and justice. Principlism supports permitting MAiD for mental illness due to the importance of autonomy in decision-making, equitable and just practices for MAiD assessors, and reducing suffering for patients and their family member(s) and/or friend(s). Carter v. Canada, the Canadian Supreme Court ruling of 2015—which changed Canadian law to allow for MAiD—held that the prohibition of MAiD infringed on Canadians’ right to “life, liberty, and the security of the person.” In a unanimous decision, the Supreme Court of Canada decided that the criminal prohibition of MAiD violates the Canadian Charter of Rights and Freedoms.[6] The Court concluded that the criminal law prohibiting MAiD interfered with people’s autonomy and dignity, which are protected by the rights of liberty and security of the person.[7] The ruling emphasized that Canada’s constitution reflects the fundamental importance of individual autonomy in personal decision-making. Research provides evidence that MAiD improves autonomy: A study among psychiatric patients found that 8 of 48 psychiatric patients said the mere option of accessing MAiD was enough to assess their future options for living wholly.[8] These findings complement a study entailing interviews with 30 adults who have mental illness, which emphasized that the ability to access MAiD allows individuals to analyze their quality of life, envision their desired future, and make decisions accordingly.[9] Although not all participants agreed that mental illness as the only underlying medical condition was appropriate for MAiD eligibility, many participants agreed that patient autonomy in decision-making was paramount and should be respected. However, autonomy as an ethical principle does not immediately grant all persons with mental illness the option to access MAiD. There are multiple eligibility criteria for those who wish to receive MAiD, which still must be approved and assessed. Currently, eligibility criteria for MAiD states that individuals must “give informed consent to receive MAiD, meaning that the person has consented to receiving MAiD after they have received all information needed to make this decision.”[10] Consent requires capability or capacity, which is the ability to understand relevant information, appreciate its potential consequences, and make an informed decision for oneself.[11] Like for many other diseases, disabilities, and conditions, patient capability is determined on a case-by-case basis.[12] Given the stigma surrounding those struggling with mental health, this thorough case-by-case examination of an individual patient’s capability and capacity without prejudice or partiality should lead to equitable and fair treatment. Without appropriate testing, those with mental illness could be wrongly stripped of their decision-making power. Arguments against MAiD for those with mental illness have raised concerns about the potential for individuals to harm themselves and others. A survey of MAiD providers demonstrated that physicians believed that the bereavement experience following MAiD is challenging and profoundly distinct and that bereavement support for all members involved should be required.[13] However, while watching one die (of MAiD) may cause harm to their families, friends, and support system at large, it is also important to recognize that watching someone suffer and struggle through their mental health journey also poses significant harm. Qualitative studies in Ontario, Canada, have interviewed family members of persons with mental illness as a sole medical condition, and interviewees shared that witnessing the illness and its impacts on their close one's lives was a very difficult experience.[14] As it relates to MAiD, participants emphasized that those living with mental illness are in the best position to understand their own pain and suffering and, in turn, make their own decisions about relief.[15] In an interview, a MAiD provider stated that MAiD may provide less suffering and more peace, and that, although it “depends on the family,... usually the family is more prepared and at peace.”[16] On the contrary, a person who has mental illness may perceive choosing MAiD as beneficial to their family member(s) and/or friend(s). Among those who died by MAiD in 2021, 35.7 percent reported that they perceived themselves as a burden on their family and friends.[17] While some authors report their concerns regarding such social burden as a potential driving factor for MAiD requests, others report that there are other additional burdens associated with requesting MAiD that may be financial, societal, and personal.[18] As such, the extension of MAiD eligibility to those with mental illness will likely only allow a small number of people to be granted MAiD.[19] Many others will be diverted to appropriate services and treatments. Patients’ decision to choose MAID noted their ability to make choices about their own care, reflecting the value of autonomy.[20] Although it is difficult to determine what is good for families in individual cases, MAiD presents an option that is both beneficent and non-maleficent. Therefore, these arguments satisfy the principles which do not necessarily conflict with MAiD. Deontology: The Duty to Recognize Vulnerability and Relieve Suffering The argument here begins with the fundamental focus of deontology—that moral duty lies in an action rather than in its consequences. Further discussion is required to analyze the impact of MAiD on healthcare workers. The Canadian Medical Association (CMA) Code of Ethics and Professionalism requires physicians to abide by virtues, commitments, and responsibilities in delivering health care and service.[21] The code states that “a compassionate physician recognizes suffering and vulnerability, … and alleviate[s] the patient’s suffering.”[22] In the context of MAiD for persons with mental illness as a sole underlying medical condition, vulnerabilities could be wide in range. Many Canadians are concerned with the interaction between mental health and other social determinants of health, such as the lack of medical, disability, financial, housing, and social support and resources.[23] As a result, another layer to the ethical issue arises: Does permitting MAiD for mental illness treat the symptoms of the issue rather than the root problem itself (social, economic, and systemic inequities)? Some argue against MAiD, stating that the nation should first focus on developing better quality care and service.[24] Others support MAiD as a potential harm reduction approach, given that most of these unjust conditions require a higher level of long-term structural and public policy overhaul.[25] The CMA Code also calls upon physicians to recognize and alleviate patients’ suffering. Some argue that while physicians and medical professionals do work to relieve suffering, they are trained to do so through a primary care-based diagnose-and-treat approach.[26] Studies that have captured Canadian physicians’ experiences providing MAiD report that, although physicians stated that the work was rewarding, it came with many challenges, including strained relationships with coworkers, increased workload, and inadequate compensation.[27] Physicians report that a part of the problem is that MAiD rules are written by lawyers and experts who are removed from its reality in medical practice. As a result, there is a lack of clarity surrounding practice norms and a lack of support for physicians.[28] Thus, while healthcare practitioners have a duty to relieve patients’ suffering, they should feel adequately trained and supported in doing so. If physicians and healthcare professionals recognize vulnerability and relieve suffering, then they should act accordingly, regardless of potential associations or outcomes. Making persons with mental illness eligible for MAiD ensures that treatment to relieve their suffering is available. However, it is imperative that there are sufficient resources and support available to healthcare professionals to ensure that they feel prepared and supported to provide MAiD, should they wish to do so. Utilitarianism: Minimizing Intolerable Suffering and Dying with Dignity Overall, utilitarianism is largely concerned with the greatest happiness principle—to increase the amount of happiness for the greatest number of people. So far, this paper has analyzed individual, family, and practitioner-based ethical considerations. But if MAiD were to be extended to those with mental illness as a singular underlying medical condition, what implications would this have for the world and society at large? There is a global drive toward authorizing organized ending of life, with an increasing number of countries legalizing MAiD.[29] The medical system is generally seen as a safe and appropriate system to carry out MAiD, especially when suicide and self-harm are regarded as “alternatives.” Yet despite these worldwide efforts, many argue through the theory of utilitarianism that the inability to see long-term consequences renders MAiD a premature solution, particularly for those who are unable or unwilling to seek other forms of potentially healing treatment or for those who may undergo MAiD only for a technological innovation or biomedical advancement to later come along as a potential cure.[30] While it is true that MAiD does not prevent these “premature deaths,” it is also true that it does not claim to.[31] MAiD provides an option to alleviate intolerable suffering. Some individuals with severe mental illness do describe their condition as intolerable suffering. MAiD is seen as an option to minimize suffering. It can also be seen as a way to die with dignity and relief.[32] While predicting outcomes is difficult, extending MAiD eligibility for persons experiencing mental illness does not undermine its ability to end suffering. It allows eligible individuals to take charge of their health, their life, and their future. Conclusion Based on the current evidence, allowing MAiD for persons with mental illness as their sole underlying medical condition presents as an ethically justifiable action. The right to self-determination and fair accessibility demonstrates that there is more harm done by prohibiting MAiD for mental illness than allowing it. Such liberty is a right, and in the context of relieving suffering, it is a duty that healthcare workers must uphold, although the ability to opt out of providing MAiD is well established. Thus, to recognize vulnerability and relieve suffering means to provide methods, such as MAiD, for those deeply impacted by mental illness. These justifications stand at both the individual level and for society at large. Nevertheless, it remains imperative to take an upstream approach that addresses the social determinants of health and aims to prevent mental illness and promote long-term, beneficial social change for those suffering, struggling, and vulnerable in our communities. - [1] Jaro Kotalik and David W. Shannon, Medical Assistance in Dying (MAID) in Canada Key Multidisciplinary Perspectives, 1st ed. 2023., The International Library of Bioethics, 104 (Cham: Springer International Publishing, 2023), https://doi.org/10.1007/978-3-031-30002-8. [2] Department of Justice Government of Canada, “Canada’s Medical Assistance in Dying (MAID) Law,” February 21, 2024, https://www.justice.gc.ca/eng/cj-jp/ad-am/bk-di.html. [3] Health Canada, “Final Report of the Expert Panel on MAiD and Mental Illness,” transparency - other, May 13, 2022, https://www.canada.ca/en/health-canada/corporate/about-health-canada/public-engagement/external-advi sory-bodies/expert-panel-maid-mental-illness/final-report-expert-panel-maid-mental-illness.html. [4] Federal Public Service (FPS) Health Belgium, “Federal Commission for the Control and Evaluation of Euthanasia,” n.d., https://consultativebodies.health.belgium.be/en/advisory-and-consultative-bodies/federal-commission- control-and-evaluation-euthanasia.; Government of Netherlands, “Is Euthanasia Allowed in the Netherlands?,” n.d., https://www.government.nl/topics/euthanasia/is-euthanasia-allowed.; “Information on Requesting Euthanasia or Assisted Suicide,” n.d., https://guichet.public.lu/en/citoyens/sante/fin-vie/euthanasie/euthanasie-assistance-suicide.html. [5] Luis Espericueta, First official report on euthanasia in Spain: A comparison with the Canadian and New Zealand experiences, Medicina Clínica (English Edition), Volume 161, Issue 10, 2023, Pages 445-447, ISSN 2387-0206, https://doi.org/10.1016/j.medcle.2023.06.021. [6] Government of Canada, “The Canadian Charter of Rights and Freedoms,” March 15, 2021, https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/. [7] Supreme Court of Canada, “Carter v. Canada,” Constitutional Law, 2015, https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14637/index.do.; Kotalik and Shannon, Medical Assistance in Dying (MAID) in Canada Key Multidisciplinary Perspectives. [8] Karandeep Sonu Gaind, “What Does ‘Irremediability’ in Mental Illness Mean?,” Canadian Journal of Psychiatry. Revue Canadienne de Psychiatrie 65, no. 9 (September 2020): 604–6, https://doi.org/10.1177/0706743720928656; Lieve Thienpont et al., “Euthanasia Requests, Procedures and Outcomes for 100 Belgian Patients Suffering from Psychiatric Disorders: A Retrospective, Descriptive Study,” BMJ Open 5, no. 7 (July 27, 2015): e007454, https://doi.org/10.1136/bmjopen-2014-007454. [9] Hamer Bastidas-Bilbao et al., “Walking Alongside: Views of Family Members on Medical Assistance in Dying for Mental Illness as the Sole Underlying Medical Condition,” Qualitative Health Research 33 (September 29, 2023), https://doi.org/10.1177/10497323231197365. [10] Government of Canada, “Canada’s Medical Assistance in Dying (MAID) Law.” [11] Commission sur les soins de fin de vie, “Les conditions de l’admissibilité à l’aide médicale à mourir au Québec: la constance dans l’évolution de la loi concernant les soins de fin de vie,” June 9, 2023, https://csfv.gouv.qc.ca/ fileadmin/docs/autres_rapports/csfv_lcsfv_conditions_ amm_2023-06-29.pdf.; Trudo Lemmens, “When Death Becomes Therapy: Canada’s Troubling Normalization of Health Care Provider Ending of Life,” The American Journal of Bioethics 23, no. 11 (November 2, 2023): 79–84, https://doi.org/10.1080/15265161.2023.2265265. [12] Justine Dembo, Udo Schuklenk, and Jonathan Reggler, “‘For Their Own Good’: A Response to Popular Arguments Against Permitting Medical Assistance in Dying (MAID) Where Mental Illness Is the Sole Underlying Condition,” Canadian Journal of Psychiatry. Revue Canadienne De Psychiatrie 63, no. 7 (July 2018): 451–56, https://doi.org/10.1177/0706743718766055. [13] Konia Trouton et al., “Attitudes and Expectations Regarding Bereavement Support for Patients, Family Members, and Friends: Findings from a Survey of MAID Providers,” British Columbia Medical Journal 62, no. 1 (2020). [14] Bastidas-Bilbao et al., “Walking Alongside.” [15] Bastidas-Bilbao et al. [16] Trouton et al., “Attitudes and Expectations Regarding Bereavement Support for Patients, Family Members, and Friends: Findings from a Survey of MAID Providers,” 2020. [17] Ramona Coelho et al., “The Realities of Medical Assistance in Dying in Canada,” Palliative & Supportive Care 21, no. 5 (October 2023): 871–78, https://doi.org/10.1017/S1478951523001025; Health Canada, “Third Annual Report on Medical Assistance in Dying in Canada 2021,” report on plans and priorities;transparency - other, July 26, 2022, https://www.canada.ca/en/health-canada/services/publications/health-system-services/annual-report-medical-assistance-dying-2021.html; Lemmens, “When Death Becomes Therapy.” [18] Coelho et al., “The Realities of Medical Assistance in Dying in Canada,” October 2023.; Bastidas-Bilbao et al., “Walking Alongside.” [19] Olivia Stefanovich, “Opposition Parties Call for Indefinite Pause to MAID Expansion for Mental Illness | CBC News,” Canadian Broadcasting Corporation, January 28, 2024, https://www.cbc.ca/news/politics/special-joint-committee-maid-mental-illness-report-1.7095679; Benjamin Lopez Steven, “Number of Assisted Deaths Jumped More than 30 per Cent in 2022, Report Says | CBC News,” Canadian Broadcasting Corporation, October 27, 2023, https://www.cbc.ca/news/politics/maid-canada-report-2022-1.7009704. [20] Hamer Bastidas-Bilbao et al., “Searching for Relief from Suffering: A Patient-Oriented Qualitative Study on Medical Assistance in Dying for Mental Illness as the Sole Underlying Medical Condition,” Social Science & Medicine 331 (August 1, 2023): 116075, https://doi.org/10.1016/j.socscimed.2023.116075. [21] Canadian Medical Association, “Canadian Medical Association Code of Ethics and Professionalism” (Canada: Canadian Medical Association, December 8, 2018), https://policybase.cma.ca/link/policy13937. [22] Canadian Medical Association. [23] Coelho et al., “The Realities of Medical Assistance in Dying in Canada,” October 2023; Stefanovich, “Opposition Parties Call for Indefinite Pause to MAID Expansion for Mental Illness | CBC News.” [24] John Paul Tasker, “Liberal Government Promoting a ‘culture of Death’ with Medical Assistance in Dying Law, Conservative MP Says | CBC News,” Canadian Broadcasting Corporation, March 6, 2023, https://www.cbc.ca/news/politics/culture-of-death-medical-assistance-in-dying-mental-illness-1.6769504. [25] Coelho et al., “The Realities of Medical Assistance in Dying in Canada,” October 2023; Kayla Wiebe and Amy Mullin, “Choosing Death in Unjust Conditions: Hope, Autonomy and Harm Reduction,” Journal of Medical Ethics, April 26, 2023, https://doi.org/10.1136/jme-2022-108871. [26] Ramona Coelho et al., “The Realities of Medical Assistance in Dying in Canada,” Palliative & Supportive Care 21, no. 5 (October 2023): 871–78, https://doi.org/10.1017/S1478951523001025. [27] Konia Trouton et al., “Attitudes and Expectations Regarding Bereavement Support for Patients, Family Members, and Friends: Findings from a Survey of MAID Providers,” British Columbia Medical Journal 62, no. 1 (2020), https://bcmj.org/articles/attitudes-and-expectations-regarding-bereavement-support-patients-family-m embers-and.; William Robert Nielsen, “MAiD in Canada: Ethical Considerations in Medical Assistance in Dying,” Canadian Journal of Bioethics 4, no. 2 (December 9, 2021): 93–98, https://doi.org/10.7202/1084456ar. [28] Coelho et al., “The Realities of Medical Assistance in Dying in Canada,” October 2023. [29] Lemmens, “When Death Becomes Therapy.” [30] William Robert Nielsen, “MAiD in Canada: Ethical Considerations in Medical Assistance in Dying,” Canadian Journal of Bioethics 4, no. 2 (December 1, 2021): 93–98, https://doi.org/10.7202/1084456ar. [31] Steven, “Number of Assisted Deaths Jumped More than 30 per Cent in 2022, Report Says | CBC News.” [32] A. Plaisance et al., “Quebec Population Highly Supportive of Extending Medical Aid in Dying to Incapacitated Persons and People Suffering Only from a Mental Illness: Content Analysis of Attitudes and Representations,” Ethics, Medicine and Public Health 21 (April 1, 2022): 100759, https://doi.org/10.1016/j.jemep.2022.100759. (shrink)

I argue that the duty of confidentiality is relative, not absolute; and that it is primarily a matter for the professional judgment of the reflective health practitioner to determine in the particular case whether competing public interests (or other compelling reasons) override that duty. I have supported that account with an analysis of medical practice as a recourse role and with an account of law that emphasises not only its duty‐imposing character but also, and crucially, an embedded liberty to (...) depart from the plain requirements of a primary legal rule where in the conscientious judgment of the addressee of that law, there is ‘damn good reason’ to do so. This account of the moral nullification of law at the outer limits appears to be descriptively accurate over a wide range of law and normatively appealing not only to democratic citizens but also to professionals such as doctors and lawyers whose role involves testing the law on moral grounds and who should be ready to do so, if but only if, they believe in the good faith exercise of professional judgment that the outcome mandated by the literal application of the legal rule is inconsistent with the moral mission of their role. The argument is illustrated with cases from American and English courts which, perhaps, render plausible the otherwise paradoxical notion that the law itself admits of departures from the legal rules. (shrink)

Maimonides, one of the most celebrated rabbis in the history of Judaism, was a prolific author of influential Arabic philosophical and medical treatises and two of the most important works on Jewish law. Medical Aphorisms is the best known and most comprehensive of his works, and Gerrit Bos offers here a masterful English translation with detailed annotations. Medical Aphorisms consists of approximately 1500 maxims compiled by Maimonides from the treatises of Galen, the renowned ancient Greek physician. (...) Maimonides arranges the aphorisms into twenty-five treatises, organizing them by traditional medieval subspecialties such as gynecology, hygiene, and diet. He also includes a section examining unusual cases from Galen and offers a critical analysis of Galen’s theories. The first of six volumes, Medical Aphorisms provides tantalizing insights into the work of Galen, as it draws on treatises of Galen that no longer exist and shines a light into the world of medieval and ancient medicine. It will be a rich and valuable resource for students and scholars working in the history of medicine, Jewish studies, and medieval Arabic culture. (shrink)

Sex offenders are sometimes offered or required to undergo pharmacological interventions intended to diminish their sex drive (anti-libidinal interventions or ALIs). In this paper, we argue that much of the debate regarding the moral permissibility of ALIs has been founded on an inaccurate assumption regarding their intended purpose—namely, that ALIs are intended solely to realise medical purposes, not correctional goals. This assumption has made it plausible to assert that ALIs may only permissibly be administered to offenders with their valid (...) consent, in line with the approach taken to most other interventions with a medical aim. However, we argue that, contrary to this assumption, the state's intention in relation to at least some ALIs is, at least in part, to achieve correctional objectives. We evaluate two legal regimes for ALI provision—section 645 of the California Penal Code and the mental health regime in England and Wales. In each case, we identify the state's implicit purpose in imposing ALIs and argue that the Californian and English regimes both serve as counterexamples to the view that ALIs are intended solely for medical purposes. While the moral implications of our argument are not straightforward, it raises the question whether consent is required for permissible imposition of ALIs, and more generally, whether the moral permissibility of crime-preventing interventions using medical means should be assessed against the standards of medical ethics or against those of criminal justice ethics. (shrink)

This article argues that doctors and other health care professionals should be obliged to provide emergency treatment to those in immediate and nearby need regardless of the absence of any prior professional relationship between the parties. It concludes that the common law should accordingly recognize a specific duty of ‘medical rescue’. It examines some of the conventional objections to affirmative duties, finding them unconvincing in this particular context. It draws on two recent appellate decisions, one Australian and the other (...) English, for support, as well as on more general arguments concerning moral sentiment, professional ethics, public expectation, and respect for human rights. (shrink)

In English medical law, it is something of an axiom that adult competent patients have an absolute right to refuse all and any medical treatment, including potentially life-saving and life-sustaining treatment. This legal proposition, which is embedded in the doctrine of consent, has for the last few decades been regarded as the expression of the philosophical principle of personal autonomy and ethical right of self-determination. The Western ethical and legal traditions places heavy emphasis on notions of personal (...) sovereignty reflected in the strong rhetorical entrenchment of patient autonomy in judicial determinations of treatment refusal cases. In a spate of legal cases in the 1980s and 1990s judicial rhetoric .. (shrink)

Maimonides, one of the most celebrated rabbis in the history of Judaism, was a prolific author of influential Arabic philosophical and medical treatises and two of the most important works on Jewish law. _Medical Aphorisms_ is the best known and most comprehensive of his works, and Gerrit Bos offers here a masterful English translation with detailed annotations. _Medical Aphorisms_ consists of approximately 1500 maxims compiled by Maimonides from the treatises of Galen, the renowned ancient Greek physician. Maimonides arranges (...) the aphorisms into twenty-five treatises, organizing them by traditional medieval subspecialties such as gynecology, hygiene, and diet. He also includes a section examining unusual cases from Galen and offers a critical analysis of Galen’s theories. The first of six volumes, _Medical Aphorisms_ provides tantalizing insights into the work of Galen, as it draws on treatises of Galen that no longer exist and shines a light into the world of medieval and ancient medicine. It will be a rich and valuable resource for students and scholars working in the history of medicine, Jewish studies, and medieval Arabic culture. (shrink)

To monopolize the scientific data gained by Japanese physicians and researchers from vivisections and other barbarous experiments performed on living humans in biological warfare programs such as Unit 731, immediately after the war the United States government secretly granted those involved immunity from war crimes prosecution, withdrew vital information from the International Military Tribunal for the Far East, and publicly denounced otherwise irrefutable evidence from other sources such as the Russian Khabarovsk trial. Acting in “the national interest” and for the (...) security of the US, authorities in the US tramped justice and morality, and engaged in what the English common law tradition clearly defines as “complicity after the fact.” To repair this historical injustice, the US government should issue an official apology and offer appropriate compensation for having covered up Japanese medical war crimes for six decades. To help prevent similar acts of aiding principal offender in the future, international declarations or codes of human rights and medical ethics should include a clause banning any kind of complicity in any unethical medicine—whether before or after the fact—by any state or group for whatever reasons. (shrink)

The Mental Capacity Act (2005) was designed to protect and empower patients with impaired capacity. Despite an estimated 40% of medical inpatients lacking capacity, it is unclear how many patients undergo capacity assessments and treatment under the Act. We audited the number of capacity assessments on the general medical wards of an English-teaching hospital. A total of 95 sets of case notes were reviewed: the mean age was 78.6 years, 57 were female. The most common presenting complaints (...) were feeling ‘unwell’ (n = 25) and confusion (n = 24). In all, 52 patients had conditions, such as delirium (n = 26) and dementia (n = 15), which often impair capacity. Capacity was assessed in seven (7.4%) patients, all of whom disagreed with the medical team about their treatment. The number of documented assessments fell short of the estimated rate of incapacity, suggesting that some means of improving capacity assessment in busy medical environments is required. (shrink)

A physician and spokesman for the French Ideologues, Pierre-JeanGeorges Cabanis (1757-1808) stands at the crossroads of several influential developments in modern culture--Enlightenment optimism about human perfectibility, the clinical method in medicine, and the formation and adaptation of liberal social ideals in the French Revolution. This first major study of Cabanis in English traces the influences of these developments on his thought and career. Originally published in 1980. The Princeton Legacy Library uses the latest print-on-demand technology to again make available (...) previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905. (shrink)

Legal battles continue in the UK over the Government’s plans to transport asylum seekers arriving on British shores to Rwanda in East Africa. Originally announced as a system for ‘processing’ asylum seekers, the Government has subsequently made it clear that there would not be an option for asylum seekers to return to the UK. The arrangement forms part of a deal between the UK and Rwanda, with the UK promising to invest £120 m in economic growth and development in Rwanda, (...) along with financing the cost of the ‘offshored’ asylum operation.1 The Government states that the policy is designed to break the business model of people traffickers involved in facilitating hazardous trips across the Channel in small, overcrowded and unseaworthy craft, leading to multiple drownings. Critics argue that the policy will do nothing to stop desperate people from seeking refuge in the UK, that transferring already traumatised people to Rwanda – which has been criticised for its human rights record – is inhumane and potentially outwith international law. Medical bodies, including the BMA, along with refugee organisations have expressed serious concerns about the health impact of such a system of ‘offshoring’. An equivalent system in Australia has been notorious for the devastating health impacts on those ‘offshored’ to the Pacific islands of Manus and Naura. Unusually in the UK the offshoring proposals have been greeted by unanimous condemnation by the Church of England. The lawfulness of the process is also subject to question. On the 14 July, a plane carrying a small number of asylum seekers to Rwanda was halted shortly before take-off following an intervention by the European Court of Human Rights. The ECtHR, part of the Council of Europe, of which the UK is still a member, said an Iraqi man known as KN faced ‘a real …. (shrink)

Autonomy is a concept that holds much appeal to social and legal philosophers. Within a medical context, it is often argued that it should be afforded supremacy over other concepts and interests. When respect for autonomy merely requires non-intervention, an adult’s right to refuse treatment is held at law to be absolute. This apparently simple statement of principle does not hold true in practice. This is in part because an individual must be found to be competent to make a (...) valid refusal of consent to medical treatment, and capacity to decide is not an absolute concept. But further to this, I argue that there are three relevant understandings of autonomy within our society, and each can demand in differing cases that different courses of action be followed. Judges, perhaps inadvertently, have been able to take advantage of the equivocal nature of the concept to come tacitly to decisions that reflect their own moral judgments of patients or decisions made in particular cases. The result is the inconsistent application of principle. I ask whether this is an unforeseen outcome or if it reflects a wilful disregard for equal treatment in favour of silent moral judgments in legal cases. Whatever the cause, I suggest that once this practice is seen to occur, acceptable justification of it in some cases is difficult to find. (shrink)

Charles Foster and Jonathan Herring are to be congratulated on their useful presentation of the roles played by concepts of personhood and identity in English medical law. 1 However, I fear that the project they have undertaken here is misconceived. It is an interesting and important misconception, which is widely shared in the literature on medical law and ethics; but a misconception it remains. The problem is this. What we call ‘the Law’ is in fact a complex (...) assemblage of institutions, rules, accredited persons, practices and systems. What it is not is a self-sufficient, integrated and self-interpreting system of doctrine. As such it does not have a clear structure which we can excavate and the idea that we can find concepts which explain and unify that structure at some deep level is thus quixotic. To approach ‘the Law’ in that way is to pursue a chimaera. We should instead... (shrink)

Differences in guidance from various organisations is preventing uniform standards of practiceThe emphasis in medical law and ethics on protecting the patient’s right to choose is at an all time high. Apart from circumscribed situations, for instance where the Mental Health Act 19831 is applicable, the only justification for medically treating an adult patient against his or her wishes is on the basis of common law, using the principle of best interests, and only when he or she lacks capacity (...) to refuse treatment. As a result, it is important that clinicians should be able to assess capacity to refuse treatment. Given that judgements of incapacity involve deciding that a person does not have the ability to refuse treatment, a great deal of care needs to go into the assessment and characterisation of incapacity.There is divergence between the characterisation of capacity that is used by the courts and that which is recommended by the British Medical Association . The BMA usefully expands on the first element of capacity as set out in the standard legal definition of capacity in the Re C judgment2 but ignores the other two elements. By doing this, the BMA makes it unclear whether it is rejecting these as relevant to capacity; it also misses the opportunity to expand on these elements in a clinically useful way.We will begin with a description of the BMA’s advice3 and the standard English legal definition of capacity.2,4 Then we will show that there are important discrepancies between these two sources of advice. We think that the BMA ought to clarify its position on capacity in order to safeguard the interests of physicians, healthcare workers, and patients.THE RE C TESTMr C was a patient in a psychiatric secure hospital who had chronic paranoid schizophrenia with …. (shrink)

In February 2014, the Belgian Parliament passed legislation allowing euthanasia for terminally ill children of all ages by 86 votes to 44, with 12 abstentions. The Bill became law in early March after being signed by the King, making Belgium the first country in the world to abolish age restrictions for euthanasia. Previously, the youngest age at which euthanasia was permitted was 12 years old in The Netherlands.1Euthanasia was legalised in Belgium in 2002, and the new legislation introduces amendments to (...) the law extending euthanasia to minors in certain circumstances. Euthanasia is now permissible for children of all ages where the child has a “terminal and incurable illness”, experiences “constant and unbearable physical suffering”, and death is expected to occur within a “brief period”. The child must be deemed capable of making the decision, and have the agreement of their parents.Belgian law sets no timetable for euthanasia from the point at which the patient first expresses a wish to die. As with adults seeking euthanasia, any request must be made in writing. A physician and “outsider” brought in to give a second opinion must agree upon the diagnosis and prognosis, and a paediatric psychiatrist or psychologist must certify in writing that the child possesses “the capacity of discernment”. Following this, the child's physician must meet with the parents to inform them of the outcome of the consultation and ensure they are in agreement with the child's request. The child and the family must receive psychological care and support if so desired.The move provoked heated debate and divided the medical, legal and political professions in Belgium. A group of 160 of the country's paediatricians opposed a change in the law, citing concerns about the largely subjective assessment of the “capacity of discernment”, and drawing attention to advances in …. (shrink)

In a recent judgment1 the Court of Protection was highly critical of health professionals for continuing to provide clinically-assisted nutrition and hydration in the face of disagreement about the patient’s best interests, without seeking to resolve the issue. This hearing had been set up specifically to consider whether GU’s dignity had been properly protected, and if not why not, given concerns raised by the Official Solicitor about what she considered to be “a complete abrogation of responsibility to consider properly or (...) at all, and to determine whether it was in GU’s best interests and therefore lawful to continue to give him an invasive medical treatment, CANH.” In April 2014, at 63 years old and living in Thailand, GU sustained severe injuries after suffering from an electrocution accident. He sustained a cardiorespiratory arrest with a significant delay before cardiopulmonary resuscitation was started and was unconscious and unresponsive. In September 2014 he was transferred to the UK. In August 2018, GU’s brother made a request for a best interests decision concerning the continuation of CANH. The family met to discuss this and all except GU’s son, agreed that continuing CANH was not in GU’s best interests. In view of the fact that there was not unanimity among the family, a decision was made that CANH should continue. Commenting on this decision, Mr Justice Hayden said ‘the apparent assumption that in the face of family disagreement ‘ therefore will continue to be cared for by nursing staff ” is a troubling non sequitur’ and stressed that ‘family dissent to a medical consensus should never stand in the way of an incapacitated patients’ best interests being properly identified’. He also made clear that the responsibility for ensuring that a best interests assessment is undertaken rests with the …. (shrink)

Healthcare reforms in India have been a much-debated issue in the recent past. While the debate has focused mainly on the right to healthcare, another by-product that has evolved out of the debate was the current problem of medical malpractice and the healthcare law. The last decade has seen an increase in the healthcare facilities in the country. This, however, has come with a bulk of medical error cases which the courts have entertained. According to reports, there has (...) been an increase in medical litigation cases by 400% in the last decade. There are about 5.2 million cases of medical error in the country every year. While there exists a standard legal system in the country which entertains such complaints of medical malpractice, the attempt by regulators and medical practitioners should be to reduce these cases. This paper seeks to analyze the extent to which medical malpractice cases affect consumers. It analyzes the existing medical liability system which has mainly evolved through the jurisprudence laid down by the English courts and critiques it. It also looks into the major reasons for such medical mishaps. Authors argue that a “No-Fault” system may give better outcomes. They analyze this by looking at the no-fault liability model implemented in New Zealand. Narratives of no-fault liability being implemented in India have also been used. These are showcased from instances of Motor Vehicles Act, 1988, and Clinical Trial regulations. It is also argued that a by-product of a no-fault liability system is stringent regulations which are used to reduce the possibility of medical mishaps altogether. Lastly, the possible problems of the no-fault liability system are discussed in the paper. (shrink)

The extent to which English law remedies injury to autonomy as a stand-alone actionable damage in negligence is disputed. In this article I argue that the remedy available is not only partial and inconsistent but also gendered and discriminatory against women. I first situate the argument within the broader feminist critique of tort law as failing to appropriately remedy gendered harms, and of law more broadly as undervaluing women’s interest in reproductive autonomy. I then show by reference to (...) class='Hi'>English remedies law’s first principles how imposed motherhood cases—Rees v Darlington and its predecessor McFarlane v Tayside Health Board—result in gender injustice when compared with other autonomy cases such as Chester v Afshar and Yearworth v North Bristol NHS Trust: A minor gender-neutral ITA is better remedied than the significant gendered harm of imposing motherhood on the claimant; men’s reproductive autonomy is protected to a greater extent than women’s; women’s reproductive autonomy is protected by an exceptional, derisory award. Worst of all, courts refuse to recognise imposed motherhood as detriment; and the deemed, mansplained, nonpecuniary joys of motherhood are used to offset pecuniary upkeep costs, forcing the claimant into a position she sought to avoid and thus further undermining her autonomy. The recent Singaporean case ACB v Thomson Medical Pte Ltd, awarding compensation for undermining the claimant’s genetic affinity in an IVF wrong-sperm-mix-up demonstrates some improvement in comparison to English law, and some shared gender injustices in the context of reproductive autonomy. ACB’s analysis is oblivious to the nature of reproductive autonomy harm as gendered; and prioritises the father’s interest in having genetic affinity with the baby over a woman’s interest in not having motherhood imposed upon her. (shrink)

In July 2019, Stella Creasy MP and her team succeeded in attaching an amendment to a largely administrative bill which would require the UK government to liberalise abortion laws in Northern Ireland by 21 October 2019, provided the Northern Ireland government does not resume before that date.1 The amendment succeeded in the Commons, 332 votes to 99 and later, with some adjustments, in the Lords, 182 votes to 37. The Bill received Royal Assent on 24 July 2019. In Northern Ireland, (...) abortion remains a criminal offence punishable by up to life imprisonment in all except exceptional circumstances, that is, where it is ‘necessary to preserve the life of the woman’ or where there is a ‘risk of serious adverse effect which is either long term or permanent’.2 The law makes no provision for women who are pregnant as a result of rape, incest or in the case of fatal fetal abnormality. Because there is a lack of clarity around which circumstances or conditions would have a sufficiently ‘serious and long-term adverse effect’, it has been argued that the law has had a ‘chilling effect’ on service provision.3 As a result, only 13 abortions were performed in Northern Ireland in 2018/2019.4 Instead, more than 1000 women travelled from Northern Ireland to England to access legal abortion services.5 A recent review of the law in Northern Ireland concluded that this situation disadvantages women who cannot afford to or are unable to travel.3 Women are also reportedly purchasing abortifacients unlawfully online, exposing them to the risk of prosecution as well as to risks where the pills are unsafe or lead to complications. Creasey’s amendment requires the Secretary of State for …. (shrink)

The article examines the new discourse on medical professionalism and responsibility through the prism of conflicts among moral values, especially with regard to truth-telling. The discussion is anchored in the renaissance of English-language writing on medical ethics in the 18th century, which paralleled the rise of humanitarianism and the advent of the word “responsibility”. Following an analysis of the meanings of the value of responsibility in general and in medical practice in particular, it is argued that, (...) similarly to the Aristotelian notion of equity, responsibility of care is a second-order value, which corrects virtues, laws and norms in exceptional circumstances. Virtues and practices of the second order, such as responsibility and deliberation, bear especially on professional doctoring, which includes a commitment to give priority to the good of the patient over one’s own good. It is argued that, in situations of conflict, and particularly conflicts between personal moral identity and the good of patients, the fundamental professional commitment is to critical and rational deliberation and to the cultivation of psycho-moral flexibility. This leads indirectly to moral growth and strengthening of professional character. (shrink)

The last half century has been characterized by a growth in the regulation of clinical research nationally and internationally. Each area of research on human subjects has been the subject of a vast academic literature and extensive public policy debate, from issues of informed consent to that of regulatory structures. Professor Bernard Dickens has provided an outstanding contribution to this debate internationally through his many innovative and incisive papers in this area. This paper provides an English lawyer’s perspective upon (...) the increasing regulation of clinical research practices and asks – does regulation equate with effective rights protection? From Nuremberg onwards, there has been concern to ensure that research practices are ethical and in accordance with legal principles. So, for example, there have been statements such as the Declaration of Helsinki, which was initially produced in 1964. In the European context in particular, notably influential statements have been the European Convention on Human Rights, which has been followed by the Council of Europe Convention on Human Rights and Biomedicine and, more recently, a Draft Additional Protocol on medical research. (shrink)

This article provides an understanding and defence of ‘best interests’. The analysis is performed in the context of, and is informed by, English law. The understanding that develops allows for differences in values, and is thus argued to be appropriate in a pluralist liberal system. When understood properly, it is argued, best interests provides the best means of decision-making for people deemed incompetent to decide for themselves. It is accepted that some commentators are cynical of best interests in practice. (...) Following an assessment of some of their principal concerns, it is suggested that best interests in fact provides a construct that is both defensible and desirable. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:John Gregory and the Invention of Professional Medical Ethics and the Profession of Medicine by Laurence B. McCullough, John Gregory’s Writings on Medical Ethics and Philosophy of Medicine ed. by Laurence B. McCullough, Medicine and Morals in the Enlightenment: John Gregory, Thomas Percival and Benjamin Rush by Lisbeth HaakonssenHeiner F. KlemmeLaurence B. McCullough. John Gregory and the Invention of Professional Medical Ethics and the Profession (...) of Medicine. Dordrecht, Boston, London: Kluwer Academic Publishers, 1998. Pp. xv + 347. Cloth, $140.00.Laurence B. McCullough, editor. John Gregory’s Writings on Medical Ethics and Philosophy of Medicine. Dordrecht, Boston, London: Kluwer Academic Publishers, 1998. Pp. xi + 254. Cloth, $105.00.Lisbeth Haakonssen. Medicine and Morals in the Enlightenment: John Gregory, Thomas Percival and Benjamin Rush. Amsterdam, Atlanta: Rodopi, 1997. Pp. x + 247. Paper, $20.50.The Scottish Enlightenment is widely appreciated for its contributions to philosophy, economics, sociology, law, chemistry, and medicine. The ideas and theories advanced by Hume, Smith, Millar, and Ferguson are still widely debated. John Gregory (1724–1773), important in his own time, is not as well known as some of his friends and colleagues. He was professor of medicine at the University of Edinburgh from 1766 to 1773, where he taught introductory lectures on the theory and practice of medicine. A set of extensive student notes from these lectures, entitled Observations on the Duties and Offices of a Physician, appeared anonymously in 1770. Two years later, Gregory himself published a revised version of his lectures under the title Lectures on the Duties and Qualifications of a Physician. These two books are said to mark the beginnings of professional medical ethics in the English-speaking world. They are also sometimes characterized as having anticipated bioethics.McCullough’s comprehensive John Gregory and the Invention of Professional Medical Ethics and the Profession of Medicine is the first modern intellectual biography of Gregory. Based on extensive research into eighteenth-century institutional context and the study of hitherto unknown manuscripts, he gives a full account of Gregory’s education at Edinburgh and Leiden, and his practice and teaching of medicine at Aberdeen, London, and Edinburgh. He stresses the importance of Gregory’s membership in the Aberdeen Philosophical Society and his close contact with Mrs. Montagu and her Circle for the understanding of his medical ethics. McCullough also shows that Bacon’s experimental method had a decisive influence on Gregory. Gregory took over Bacon’s three offices or ends of medicine: preservation of health, prolonging of life, and curing of diseases. In 1772, perhaps anticipating his premature death from hereditary gout, he added a fourth office, namely easing the pain of dying. Gregory referred mainly to Bacon (and Reid) in his Lectures to make clear how we can enlarge our medical knowledge by the method of experience and observation, pointing out that the progress of medicine had been seriously retarded by the way in which it was taught since Hippocrates. He also thought it was handicapped by the view that only professionals [End Page 535] should practice it, and claimed that even quacks have their advantages because their interest and reputation seldom suffer from the failure of the experiments necessary for the improvement of the medical profession.Gregory also argued that we should regard medicine not as a trade but as an art. In this context the principle of sympathy (or humanity) became important for him. Sympathy was the basis of the central duties in his Lectures. In a time of extreme instability of manners, when medicine was regarded more as a trade than an art, there was no physician-patient relationship based on the epistemological and moral authority of the physician. According to McCullough, it was Gregory who created “the physician-patient relationship as fiduciary. The virtues of the physician as fiduciary—openness to conviction, tenderness, and steadiness—provided for him the moral causes that would gather physicians together into a group worthy of the name, ‘profession,’ in its intellectual and moral senses” (265). The physician should no longer view his patients as moral strangers.McCullough claims that Gregory’s medical ethics is not just of historical interest, providing bioethics with its own history. It is also of... (shrink)

Neither the English courts nor the National Health Service (NHS) have been immune to the modern mantra of patient choice. This article examines whether beneath the rhetoric any form of real choice is endorsed either in law or in NHS policy. I explore the case law on ‘consent’, look at choice within the NHS and highlight the dilemmas that a mismatch of language and practice poses for clinicians. Given the variance in interpretation and lack of consistency for the individual (...) patient I argue for a semantic change that obviates the use of ‘choice’, focussing instead on the options for treatment that are available and accessible, with due acknowledgement of individual patient preferences, without raising unfettered and false expectations. (shrink)

The English Surgeon . 2008. Produced and directed by Geoffrey Smith. Eyeline Films and Bungalow Town Productions. English and Ukrainian, with English subtitles. 1 hour 33 minutes. http://www.theenglishsurgeon.com Content Type Journal Article DOI 10.1007/s11673-010-9225-7 Authors Rebecca L. Volpe, California Pacific Medical Center Clinical Ethics Fellow, Program in Medicine & Human Values 2395 Sacramento Street, 3rd floor San Francisco CA 94115 USA Journal Journal of Bioethical Inquiry Online ISSN 1872-4353 Print ISSN 1176-7529 Journal Volume Volume 7 Journal (...) Issue Volume 7, Number 2. (shrink)

The UK Supreme Court in Montgomery v Lanarkshire Health Board adopts an approach to information disclosure in connection with clinical treatment that moves away from medical paternalism towards a more patient-centred approach. In doing so, it reinforces the protection afforded to informed consent and autonomous patient decision making under the law of negligence. However, some commentators have expressed a concern that the widening of the healthcare providers’ duty of disclosure may provide impetus, in future cases, for courts to adopt (...) a more rigorous approach to the application of causation principles. The aim would be to limit liability but, in turn, it would also limit autonomy protection. Such a restrictive approach has recently been adopted in Australia as a result of the High Court decision in Wallace v Kam. This paper considers whether such an approach is likely under English negligence law and discusses case law from both jurisdictions in order to provide a point of comparison from which to scope the post- Montgomery future. (shrink)

This article will explore whether the law should allow people with anorexia nervosa to refuse nutrition and hydration with special reference to the English decision in Re E (Medical Treatment: Anorexia). It argues that the judge in that case made the correct decision in holding that the patient, who suffered from severe anorexia nervosa, lacked capacity to make valid advance directives under the Mental Capacity Act 2005 of the United Kingdom, and that medical procedures that are apparently (...) against her wishes should be carried out for the sake of preserving her life. The law should generally not permit patients with anorexia nervosa to decline nutrition and hydration, precisely because their autonomous ability to make such decisions has been substantially circumscribed by this psychiatric condition. (shrink)

In English law there is a strong (though rebuttable) presumption that life should be maintained. This article contends that this presumption means that it is always unlawful to withdraw life-sustaining treatment from patients in permanent vegetative state (PVS) and minimally conscious state (MCS), and that the reasons for this being the correct legal analysis mean also that such withdrawal will always be ethically unacceptable. There are two reasons for this conclusion. First, the medical uncertainties inherent in the definition (...) and diagnosis of PVS/MCS are such that, as a matter of medical fact, it can never be established, with the degree of certainty necessary to rebut the presumption, that it is not in the patient’s best interest to remain alive. And second (and more controversially and repercussively), that even if permanent unconsciousness can be unequivocally demonstrated, the presumption is not rebutted. This is because there is plainly more to human existence than consciousness (or consciousness the markers of which can ever be demonstrated by medical investigations). It can never be said that the identity of the patient whose best interests are at stake evaporates (so eliminating the legal or ethical subject) when that person ceases to be conscious. Nor can it be said that the best interests of an unconscious person do not mandate continued biological existence. We simply cannot know. That uncertainty is legally conclusive, and (subject to resource allocation questions and views about the relevance of family wishes and the previously expressed wishes of the patient) should be ethically conclusive. (shrink)

Although the teaching of medical ethics and law in medical education is an old story that has been told many times in medical literature, recent studies show that medical students and physicians lack confidence when faced with ethical dilemmas and medico-legal issues. The adverse events rates and medical lawsuits are on the rise whereas many medical errors are mostly due to negligence or malpractices which are preventable. While it is true that many medical (...) schools teach their students medical law and ethics, there are wide variations in what is being taught because there is no universally agreed syllabus. Yet the knowledge of medical law and ethics is closely relevant to the medical profession and that failure in abiding the law may result in serious civil or even criminal consequences. While this paper does not propose to lay detailed analysis of the relevant areas of law or ethics, it proposes to cover some legal areas so as to highlight and bring to attention the need for a medical law and ethics course. This article also considers the problems faced and recommendation as to future directions to be taken with respect to teaching medical law and ethics. It concludes with a suggested course outline for the teaching of medical law and ethics. (shrink)

This book provides a clear, concise description of medical law; but it does more than that. It also provides an introduction to the ethical principles that can be used to challenge or support the law. It also provides a range of perspectives from which to analyse the law: feminist, religious and sociological perspectives are all used.

Summary Principles Timely support for patients and people close to them, and effective, sensitive communication are essential. Decisions must be based on the individual patient's circumstances and reviewed regularly. Sensitive advance discussion should always be encouraged, but not forced. Information about CPR and the chances of a successful outcome needs to be realistic. Practical matters Information about CPR policies should be displayed for patients and staff. Leaflets should be available for patients and people close to them explaining about CPR, how (...) decisions are made and their involvement in decisions. Decisions about attempting CPR must be communicated effectively to relevant health professionals. In emergencies If no advance decision has been made or is known, CPR should be attempted unless: the patient has refused CPR; the patient is clearly in the terminal phase of illness; or the burdens of the treatment outweigh the benefits. Advance decision making Competent patients should be involved in discussions about attempting CPR unless they indicate that they do not want to be. Where patients lack competence to participate, people close to them can be helpful in reflecting their views. Legal issues Patients' rights under the Human Rights Act must be taken into account in decision making. Neither patients nor relatives can demand treatment which the health care team judges to be inappropriate, but all efforts will be made to accommodate wishes and preferences. In England, Wales and Northern Ireland relatives and people close to the patient are not entitled in law to take health care decisions for the patient. In Scotland, adults may appoint a health care proxy to give consent to medical treatment. Health professionals need to be aware of the law in relation to decision making for children and young people.IntroductionWhy policies are neededCardiopulmonary resuscitation can be attempted on any person whose cardiac or respiratory functions cease. Failure of these functions is part of dying and thus …. (shrink)

This article presents an analysis of contractual relations in sport from the standpoint of the Croatian legislative system. Due to the complexity of the subject matter, the author considers only a small fragment of it - the significance and the role of sport in Croatian society and the law of contracts „as a cornerstone on which „sports law“ has been built and which is of primary importance in most areas where there is an interface between sport and the law, irrespective (...) of whether the sport is being played at an elite level or at a more humble one“. Bearing in mind the limited extent of this article, the autor tries to provide some clarifications and some guidance on how to deal with the designation and the determination of the applicable law for contracts in the sporting context. Considering that there are different legal regimes which may come into play with regard to the designation of the law applicable to contracts in the sporting context, the author first presents the determination of the applicable law according to the Rome I Regulation and then according to the Croatian Arbitration Act, Swiss Private International Law Act and the CAS Code of Sports-related Arbitration, as the most common in sports practice. Then, the author deals with contracts concluded with minor athletes and the determination of the law applicable to some preliminary questions. Finally, the author presents her perception of the problems encountered and some suggestions for the improvement of the existing legal framework. (shrink)

Moshe ben Maimon, or Moses Maimonides, remains one of the most celebrated rabbis in this history of Judaism; his numerous writings include philosophical and medical treatises in Arabic, two of history's most important works on Jewish law, and, most notably, efforts to reconcile Aristotelian philosophy with biblical teaching. The _Complete Medical Works_, edited by Gerrit Bos of the Martin-Buber-Institut fur Judaistik at the University of Cologne, collects the entirety of Maimonides's medical writings. Notwithstanding its title, _On Asthma_ (...) is in fact a complete regimen of health, designed for the needs of a high-ranking patient whose identity is not stated. In true Galenic fashion, Maimonides stresses that a healthy lifestyle and diet are the most important preventative measures against chronic illness such as asthma. Good and bad foods are described in detail, and many recipes for beneficial dishes and drugs are included, with Maimonides adapting Galenic regimens to the needs of his Muslim patient. (shrink)

Moshe ben Maimon, or Moses Maimonides (1135-1204), remains one of the most celebrated rabbis in this history of Judaism; his numerous writings include philosophical and medical treatises in Arabic, two of history's most important works on Jewish law, and, most notably, efforts to reconcile Aristotelian philosophy with biblical teaching. The Complete Medical Works, edited by Gerrit Bos of the Martin-Buber-Institut fur Judaistik at the University of Cologne, collects the entirety of Maimonides's medical writings. Notwithstanding its title, On (...) Asthma is in fact a complete regimen of health, designed for the needs of a high-ranking patient whose identity is not stated. In true Galenic fashion, Maimonides stresses that a healthy lifestyle and diet are the most important preventative measures against chronic illness such as asthma. Good and bad foods are described in detail, and many recipes for beneficial dishes and drugs are included, with Maimonides adapting Galenic regimens to the needs of his Muslim patient. Volume Two offers Gerrit Bos’s critical editions of all three surviving medieval Hebrew translations of Maimonides’ work: one allegedly prepared by the fourteenth-century physician Samuel Benveniste, who served Don Manuel, brother of King Pedro IV of Aragon; a second by Joshua Shatibi from Játiva (Xátiva) between the years 1379 and 1390, for the referendary Fernán Díaz of Toledo at the court of King Juan II of Castile; and a third by an anonymous translator, perhaps in the thirteenth century. The volume also contains critical editions by Michael R. McVaugh of the two medieval Latin translations of Maimonides’ treatise, one probably made by Giovanni da Capua at Rome c. 1300 and the other begun by Armengaud Blaise in Montpellier in 1294 but completed eight years later. It concludes with a section of addenda and corrigenda to the first volume. (shrink)

While many western countries now have large Muslim communities, relatively little scholarly attention is given to the attitudes of Muslims regarding end-of-life issues. Meanwhile, we receive strong and significant signals from physicians and pastoral care teams on the difficulty of discussing pain treatment with Muslim patients. With this study of Islamic views on pain control and palliative sedation in English Sunni e-fatwas we wish to make a contribution from the field of religious studies to a better understanding of how (...) Muslim patients balance their personal needs for pain treatment with the Islamic normative background. Using Broeckaert’s conceptual framework on treatment decisions in advanced disease, we conducted an in-depth analysis of English Sunni e-fatwas on pain control and palliative sedation. The e-fatwas were selected using Bunt’s typology of Cyber Islamic Environments and Tyan’s definition of a fatwa. We found that references to the use of sedative medication to reduce the consciousness of the patient for pain treatment were very scarce in the texts we analysed. Although the idea of patiently enduring pain is present in the e-fatwas, it does not dominate the discussion, since the alleviation of pain is equally encouraged. When the pain medication used is addictive, alters the patient’s state of consciousness or contains alcohol making it problematic from an Islamic normative point of view, the use of this type of medication can be permitted on the basis of a principle in Islamic jurisprudence: necessity permits breaking the law. The possible danger of death after the administration of high doses of pain medicine is countered based on the intention of the treating physician: he or she aims to alleviate the pain and not kill the patient. The study of English Sunni e-fatwas on pain and symptom control indicates the absence of an insurmountable ethical problem connected to the use of heavy pain medication. (shrink)