This chapter considers the legal and moral status of the human embryo and foetus. It is an area that continues to attract controversy. Consensus is impossible to attain. We consider the terms of the Abortion Act 1967 and proposals for reform and examine the status of the embryo in embryo research. We also analyse the response of the European Court of Human Rights in Vo v France and A, B and C v Ireland and its impact on domestic law.
In the landmark 2015 Supreme Court decision of Montgomery v Lanarkshire Health Board, the much criticised decision of the House of Lords in Sidaway v Royal Bethlem Hospital was consigned to history. No longer are adults with mental capacity only entitled to be told what doctors think it is appropriate to tell them. This chapter considers the torts of battery and negligence, exploring the right to consent and the right to say ‘no’ to treatment. What is meant by consent? How much must a doctor tell a patient? Can a doctor withhold information from a patient in her best interests (the so-called ‘therapeutic privilege’)?
The Human Fertilisation and Embryology Act 1990 (as amended) and the Human Fertilisation and Embryology Authority regulate reproductive technologies. Neither has escaped criticism. Tough questions surround issues of access to treatment. The law has struggled with the meaning of ‘father’ and ‘mother’. The first ‘test tube’ IVF baby was born in 1978. Since then, reproductive technologies have advanced considerably. Many generate moral controversy. Pre-implantation genetic diagnosis (PGD) involves screening embryos to avoid implanting embryos with a defective gene. The technology has led to the creation of ‘saviour siblings’ where parents whose child is afflicted by a potentially fatal genetic disorder can seek to have another baby whose stem cells, taken from her umbilical cord, could ‘cure’ her brother or sister. Surrogacy remains a difficult issue, particularly around the question of payment.
Capacity, Consent and Compulsion examines the Mental Capacity Act 2005 ten years on. This visionary piece of legislation has led to a substantial body of case law. Its rejection of a pure substituted judgement test in favour of a modified best interests test and its adoption of a two part test for (in)capacity have excited much academic debate. In 2007 the Act was amended to introduce new Deprivation of Liberty Safeguards (DoLS). The DoLS have been widely criticised. We consider measures to support those lacking capacity such as advance directives, lasting powers of attorney and court-appointed deputies. Central to the Act is the Court of Protection which adjudicates on disputes in both health care and welfare matters.
The law of negligence provides compensation to individuals injured as a result of another person’s negligence. Gross negligence resulting in death may be punished by the criminal courts. Both issues are covered in detail in this chapter. We consider the three factors that must be demonstrated for a patient to establish negligence: duty, breach and causation. We chart relevant case law including the famous decisions of Bolam and Bolitho. Wilful neglect of a mentally ill or mentally incapacitated patient has long been a crime. Sections 20-25 of the Criminal Justice and Courts Act 2015 extends the offence of ill treatment or wilful neglect to cover such conduct by all paid care workers, which includes doctors and nurses. We discuss a number of pending prosecutions under the Corporate Manslaughter and Homicide Act 2007.
Robert Francis QC’s Report of the Mid Staffordshire NHS Trust Public Inquiry 2013 (the Francis Report) criticised the Trust’s poor reaction to persistently appalling standards of care. Despite numerous reforms, the NHS complaints procedure has come under fire for many years. This chapter examines the history, reforms and future of the NHS complaints process within a wider system of patient redress. It analyses the two stage complaints process- local resolution and appeal to the Health Service Commissioner, better known as the NHS Ombudsman; examines the role of apologies; and considers the viability of an alternative to tort: no-fault compensation.
In the 2015 Supreme Court decision, Montgomery v Lanarkshire Health Board, Lady Hale said: ‘Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being.’ This chapter charts the development of reproductive autonomy and the legal response. We start by looking at patient rights to contraception before examining cases of therapeutic and non-therapeutic sterilisation. We consider the legal response to injury sustained before birth, the Congenital Disabilities (Civil Liability) Act 1976 and consider the validity of claims for wrongful birth and life. Moving on to birth, we ask how far the woman retains control of her labour.
Whilst death cannot be evaded, the precise moment of its onset is subject to debate. Biologically, death is a process and not an event. Historically, the key factors in the process used to determine whether death had occurred were the cessation of breathing and the cessation of heartbeat. Medical advances show this to be problematic. Consider elective cardiac arrest during open-heart surgery, for example, or cases of spontaneous cardiac arrest followed by successful resuscitation. The heart stops but the patient is not dead. Official endorsement of ‘brain stem death’ in the UK is now to be found in a comprehensive Code of Practice issued by the Academy of Medical Royal Colleges. The legal implications are examined in full.
In this chapter, we examine the law governing doctors’ relationships with child patients. The courts are often asked to determine the fate of ill children when doctors and parents disagree about how best to care for the child. One recent example involved parents removing their five year old from hospital to seek treatment abroad. In another recent case a mother disappeared for days when the court ruled her son should receive aggressive treatment for his cancer. Very poorly babies born at the threshold of viability sometimes raise questions about the withholding or withdrawing of treatment. Older children can give consent if they are judged to have sufficient understanding to be considered ‘Gillick competent’, but they cannot necessarily refuse treatment that others consider to be in their best interests.
Doctors’ Responsibilities: Patients’ Rights looks at patients’ rights in the context of decision-making. We consider the impact of the European Convention on Human Rights; the Human Rights Act 1998 and their expression in the NHS Constitution. We consider the difficult matter of resource allocation, the role of the National Institute for Health and Care Excellence (NICE) and reliance on the ‘Quality Adjusted Life Year’ (QALY) – a resource allocation tool that measures the quality of the patient’s remaining life-years.